The subject of this column is the very recent Schrenk decision from the British Columbia Court of Appeal.
Mr. Shrenk apparently had a head injury some years ago and it made him less likely to bite his tongue- i.e. it made him unpleasantly outspoken.
He was a site supervisor for Clemas Contracting, on a road improvement project.
There was often a civil engineer on site, and that fellow worked for an engineering consulting company. That engineer was born in a foreign land, and appeared to be of a different religion than Mr. Shrenk and perhaps was gay.
Mr. Shrenk made unpleasant comments to the engineer about all three of those things.
As a result, the engineer did two things. First, he spoke to the powers that be at his engineering firm, who then spoke to Clemas Contracting and got Mr. Shrenk fired and secondly he applied to the BC Human Rights Tribunal and originally named Mr. Shrenk and Clemas Contracting as respondents.
For some reason, not reported in the judgment, Clemas got let out of the proceeding.
Mr. Shrenk admitted saying the nasty racist, homephobic things.
What then is the issue, you may ask?
The issue is, were those things said “in relation to employment?”
The British Columbia Human Rights tribunal said yes and found it had jurisdiction and made an award against Mr. Shrenk.
He appealed to the British Columbia Supreme Court, wherein his appeal was thrown out. That judge agreed that the British Columbia Human Rights tribunal had jurisdiction over the matter.
Mr. Shrenk then appealed that decision to the British Columbia Court of Appeal. He won.
That court reasoned that it is necessary for the person who makes the offending comments to have some power or control over the recipient of the comments- in this case there was none and indeed, Mr. Shrenk was junior in status on the project to the complaining engineer. Thus, the matter was not “employment related” even though the statements were received at a job site and were stated by another person who had employment reasons to be at that job site.
It will be interesting to see if this case makes its way up to the Supreme Court of Canada.