By Vicki Giles, Partner, McLennan Ross LLP
In June 2009, we reported on a Court of Queen’s Bench decision which clarified the meaning of “employer” in the context of Alberta’s human rights legislation (click here to see the email alert). The Human Rights Commission appealed the decision and the Court of Appeal has now rendered its decision.
The case involved a worker who alleged he was discriminated against by virtue of Syncrude’s pre-access alcohol and drug testing policy. The worker was employed by a contractor working on Syncrude’s construction site and was required to pass Syncrude’s alcohol and drug test before he could be transferred to the site. He failed and Syncrude prevented him from working at the site. The worker then filed a discrimination complaint with the Human Rights Commission.
The Human Rights Tribunal determined that, although the worker was actually employed by the contractor, Syncrude was also considered an employer under the Act. The Court of Queen’s Bench disagreed with the Tribunal and determined that, despite the fact that “employer” must be defined broadly, in the absence of an express or implied agreement between Syncrude and the worker for the use of his services, Syncrude could not be considered an employer.
The Court of Appeal agreed Syncrude was not an employer under the Act, but clarified the reasoning for this finding. The Court recognized that the definition of employer in the Act is not necessarily limited to those in a traditional employee/employer relationship. That said, the fact that a party indirectly “utilizes the services” of a worker is not sufficient to create an employment relationship. The Court found that a contextual approach is required to decide whether a particular relationship qualifies as employment. The Court suggested the following factors must be considered:
- whether there is another more obvious employer involved;
- the source of the employee’s remuneration and where the financial burden falls;
- normal indicia of employment such as employment agreements, collective agreements, statutory payroll deductions and T4 slips;
- who directs the activities of, and controls the employee, and has the power to hire, dismiss and discipline;
- who has the direct benefit of, or directly utilizes the employee’s services;
- the extent to which the employee is a part of the employer’s organization, or is a part of an independent organization providing services;
- the perceptions of the parties as to who was the employer; and
- whether the arrangement has deliberately been structured to avoid statutory responsibilities.
The Court went on to say that, where it is alleged there is more than one employer, the following factors are also relevant:
- the connection between any co-employer and the employee, including whether there is a direct contractual relationship between the complainant and the co-employer;
- the independence of any alleged co-employer from the primary employer and the relationship (if any) between the two;
- the nature of the arrangement between the primary employer and the co-employer (for example – is the co-employer merely a labour broker as opposed to an independent subcontractor); and
- the extent to which the co-employer directs the performance of the work.
The Court confirmed that, in the circumstances, the relationship between the complainant and Syncrude was too remote to justify a finding of employment. It went on to acknowledge its finding meant that no remedy was available for a worker in circumstances where he/she was excluded from private property by virtue of a discriminatory policy. The Court brushed aside this concern by confirming that not all discrimination is unlawful – only discrimination prohibited by the Act. “Access to private property” is not one of the protected activities.
This decision should come as a relief to all owners of construction sites. The potential liability for discrimination based on pre-access testing could have been substantial if the Court of Appeal had upheld the original Tribunal decision. At least in the context of human rights legislation, it is lawful for owners to regulate who is allowed on their property.