Alberta Court Of Appeal Limits Concept Of 'Employer' In Significant Human Rights Case

In an important case for employers utilizing third party contractors and subcontractors, the Alberta Court of Appeal has ruled that the concept of an "employer" does not extend to the owner of an industrial site who receives the benefit of services provided by employees of an arm's length contractor: Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3 (Lockerbie).

In Lockerbie, the complainant was an employee of Lockerbie & Hole Industrial Inc. (Lockerbie & Hole), which was a contractor retained to construct facilities on an oilsands upgrader construction project of Syncrude Canada Ltd. (Syncrude). Syncrude was not the complainant's employer in any conventional sense, in that it did not hire him, pay him or direct his activities on Syncrude's site. Nonetheless, in reviewing a complaint alleging discrimination under the Alberta Human Rights Act (the Act) as a result of Syncrude's policies governing access to its site, a Human Rights Panel found that Syncrude was an employer of the complainant because it controlled the work site and was enjoying or utilizing his services indirectly through Lockerbie & Hole. On appeal, the Court of Queen's Bench of Alberta overturned the decision of the Human Rights Panel.

In dismissing a further appeal, the Court of Appeal of Alberta found that Syncrude was not the complainant's employer for purposes of the Act. The Court indicated that a contextual approach is required to decide whether a particular relationship qualifies as "employment" under the Act. This requires that a number of factors be examined, including whether there is another more obvious employer involved and who has the direct benefit of, or directly utilizes, the employee's services. Further, where it is alleged that there is more than one co-employer, the Court...