Employers and employment lawyers take heed; you cannot paint with broad strokes when it comes to human rights issues. So says the Ontario Human Rights Tribunal in a recent decision that limits the application of a Supreme Court of Canada (the “SCC“) ruling last year that seemed to restrict the reach of human rights legislation in the context of partnership agreements.
In the SCC decision, an equity partner at a B.C. law firm was deemed not to be an employee, and excluded from the anti-discrimination provisions of that province’s statutory human rights regime. The simple takeaway from that case, as many headlines put it, seemed to be “Partners of a Partnership Not Afforded Human Rights Protections”. Confronted with a similar set of facts, however, the Ontario Tribunal resolved against creating “human rights free zones in the workplace” and held that an equity partner could still be protected by the Ontario Human Rights Code.
In Margaret Swain v MBM Intellectual Property Law LLP, an equity partner at a law firm alleged discrimination in two social areas governed by the Code (i.e. where discrimination is expressly prohibited), namely employment and contract. Discrimination was alleged on the basis of gender, family status and perceived disability.
MBM argued that the complaint did not fall into either of the two social areas cited. First, the partner was not an employee, in accordance with the SCC’s ruling in the BC case. Second, the Code’s language regarding contracts (“a right to contract on equal terms” free from discrimination) refers only to the formation of a contract. Accordingly, even if the partner’s claim could be considered a contractual issue, the partner had failed to actually point to any provision of her partnership agreement that was discriminatory.
The Tribunal disagreed with both arguments presented by MBM. Citing both jurisprudence and the rules of statutory interpretation, it emphasized that human rights legislation should always be interpreted in a liberal manner. First, this case could be distinguished from the BC case since the term “employment” was not defined in the Ontario Code. The Tribunal determined that “employment” under Ontario’s legislation has been consistently interpreted to include a wide array of employment-like situations, including those far removed from the traditional “master/servant” relationship: volunteers, employer clients, union hiring halls.
Secondly, the Tribunal held that the “right to contract on equal terms” should be interpreted to mean something far more than just the formation of a contract. It is the relationship the contract creates that must be analyzed to determine whether there has been prohibited discrimination under the Code, not the language of the contract’s provisions.
Although not a basis of the Tribunal’s ultimate decision, it should be noted that a distinction was drawn in this case between a partner in name alone and one exercising appropriate discretion and control over the partnership. It is to be expected that this analysis will be used in future rulings when dealing with allegations of workplace discrimination in Ontario, particularly as it pertains to the law of partnerships.
The Code will, as it has traditionally been, continue to be interpreted in a very liberal manner. Presiding tribunals and courts, in Ontario and elsewhere, are likely to be wary about carving out exceptions to human rights legislation, and an individual’s position or title in the workplace is unlikely to be the end of a judge or adjudicator’s analysis when it comes to such matters.