In many jurisdictions, consultants, agents and other workers who are not in a traditional employment relationship, are excluded from the protections of human rights legislation.
For example, section 2 of the Canadian Human Rights Act (which applies to federal employers) states that the purpose of the Act is to give effect to the principle that “all individuals should have an opportunity equal with other individuals”. The Act then immediately limits the concept to employees only, in the workplace. Similar limitations apply in provincial legislation throughout Canada leaving consultants with no express protection.
Two recent cases, one from Alberta and one from British Columbia, explore this issue of the concept of “employment” in a human rights context and come to vastly different results.
LOCKERBIE & HOLE INDUSTRIAL INC. V ALBERTA1 (THE LOCKERBIE DECISION)
The Lockerbie Decision, handed down by the Alberta Court of Appeal on January 11, 2011, dealt with the issue of disability discrimination in the context of pre-site access drug testing.
Section 7(1) of the Alberta Human Rights Act provides that “no employer … shall discriminate against any person with regard to employment or any term or condition of employment …” on any of the prohibited grounds. One such prohibited ground is “mental disability” which can include addictions such as drug or alcohol addictions.
Donald Luka was employed by Lockerbie & Hole. Mr. Luka required access to a Syncrude site in Fort McMurray, Alberta, in order to perform his duties for Lockerbie & Hole. He was asked to take a drug test and he tested positive for marijuana, and therefore was denied access.
He brought a complaint based on disability discrimination and the Alberta Human Rights Tribunal found that he was neither disabled (because he was a recreational user and not an addict) nor had he been perceived to be disabled, so his claim failed. As part of their decision, however, the Human Rights Tribunal also found that Mr. Luka was an employee of both Lockerbie & Hole and Syncrude. Both Lockerbie & Hole and Syncrude appealed the finding that Syncrude was Mr. Luka’s employer.
The Alberta Court of Appeal held that, although the term “employment” needs to be given a broad interpretation in human rights legislation, Mr. Luka was not an employee of Syncrude in this case. The Court set out a list of factors to consider when deciding if an individual is an employee of a particular entity. In this case, the fact that there was no contractual relationship between Syncrude and Mr. Luka and the fact that Mr. Luka was not functionally a part of Syncrude’s organization, meant that he was not an employee of Syncrude and, as a result, Syncrude had no human rights obligations towards him. Mr. Luka’s only recourse would be against his employer, in this case, Lockerbie & Hole.
MCCORMICK V FASKEN MARTINEAU DUMOULIN LLP 2 (THE MCCORMICK DECISION)
This decision was reached by the British Columbia Human Rights Tribunal on December 16, 2010 and dealt with the concept of age discrimination in a law firm.
Section 13(1) of the British Columbia Human Rights Code states that “a person must not … refuse to continue to employ a person or discriminate against a person regarding employment or any term or condition of employment because of the … age of that person”.
John McCormick was an equity partner with Fasken Martineau Dumoulin LLP (Faskens) and, as such, was not an employee in any traditional sense. The relationship was governed by a partnership agreement and he was entitled to a share of the profits of the business. Nonetheless, when he was forced to retire at the age of 63, he brought a human rights complaint alleging age discrimination. Faskens brought a preliminary application on the issue of whether or not the Tribunal had jurisdiction to hear the complaint because, they argued, Mr. McCormick was not an employee and therefore was not entitled to the protection of the Human Rights Code.
The Tribunal allowed Mr. McCormick’s claim to proceed (though the merits are yet to be decided). The B.C. Tribunal, like the Alberta Court, stated that the definition of “employment” must be interpreted generously and flexibly in human rights legislation. The Tribunal considered four factors in its analysis:
- Utilization (i.e. who did the individual provide services to?)
- Control (who directed the individual in what work to do?)
- Financial burden (whom is the individual reliant on for an income?)
- Remedial purpose (could the alleged employer remedy the discrimination?)
In deciding that the relationship between Mr. McCormick and Faskens was one of “employment”, meaning he was entitled to the protection of the Human Rights Code, the Tribunal has potentially opened a new forum for partners, consultants, agents and other workers who would not normally be considered to be employees, to advance their claims.
These new broader definitions of “employee” and “employment” suggest that it may be time for legislative change. Rather than asking the courts to stretch the concept of “employment” to ensure equality for all individuals in the workplace, it would surely be better for provincial and federal legislatures to expressly provide protection for all individuals in the workforce.
A quick glance east shows how change can be effected; the European Equal Treatment Directives ensure that national anti-discrimination legislation throughout the European Union applies to workers (which includes consultants, contractors and sometimes even extends to directors and officers) and the same could easily be done in Canada. Certainly, this area is one to watch as new developments arise.