The Human Rights Approach To Defining 'Employees'

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...