Who Is My Employer?

Earlier this year, the Alberta Court of Appeal was required to consider whether the common law definition of "employer" should be expanded in the context of the Alberta Human Rights Act (the "Act"), where a worker who failed a drug test required by Syncrude was denied access to a Syncrude worksite in Fort McMurray. The case has implications particularly for companies that use contractors and have a relatively high level of control over the contractors' employees.

The case is Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3. The worker's direct employer was not Syncrude, but Lockerbie & Hole, an arm's-length subcontractor performing construction work on the Syncrude site. The question before the Court was whether Syncrude was also the worker's employer for the purposes of the Act. While recognizing that co-employment was possible in certain circumstances, the Honourable Mr. Justice Slatter, writing for the Court, held that the facts could not support a finding of co-employment in this case.

The worker, Donald Luka, had brought a complaint against both Syncrude and Lockerbie & Hole to the Alberta Human Rights and Citizenship Commission, under the section of the Act prohibiting discrimination by an employer. Mr. Luka had tested positive for marijuana but denied being a regular user. He claimed that the drug-testing policy and the way it was administered treated him as if he had a drug addiction (which would amount to a disability) although he did not. Therefore his claim rested on his being "perceived" to have a disability, and on a lack of reasonable accommodation by his employer. The human rights panel dismissed Mr. Luka's claim, finding that he had failed to show a disability or perception of disability, and thus had failed to establish a prima facie case.

However, on the question of whether an employment-based claim against Syncrude could even be supported in this case, the panel found that Syncrude was indeed Mr. Luka's employer for the purposes of the Act. It did so following other cases in which the concept of employment had been expanded to include the "utilization" of a worker's services, even in the absence of a conventional employment relationship – and also because it was Syncrude that controlled the pre-access drug testing requirement.

Despite having ultimately defeated the discrimination claim, both Syncrude and Lockerbie & Hole appealed the employment aspect of the...