The Alberta Court of Appeal has recently added to the ongoing debate in Canada over who is or isn’t an employer in the human rights context. In its recent decision in 375850 Alberta Ltd. v. Beverly Noel and the Director of the Alberta Human Rights Commission, the dismissal of the complainant’s appeal illustrates that naming the correct employer is vital to the outcome.
Background
Beverly Noel’s human rights complaint was complicated by the multiple relationships present in her oilfield job in northern Alberta. She worked for a well-testing company. It arranged for living accommodations for her in a camp owned by a numbered company, 375850 Alberta Ltd.
Although she had a locked room there, Noel was subject to multiple occasions of invasive harassment by an employee of the camp owner. Twice the employee was able to enter her room while she was either naked or sleeping. There was at least one other break-in, which Noel strongly suspected the same employee was behind.
Noel complained about the employee’s conduct to the camp owner. The owner took no action, but the police did. The responsible employee was eventually convicted of a criminal offense.
Human rights tribunal decision
Noel also made a gender discrimination complaint against the camp owner to the Alberta Human Rights Commission. In it, she characterized her complaint as employment-based. The tribunal’s original decision found in favor of Noel. It awarded her $5,000 for pain and suffering as well as 12 months’ of lost wages.
The tribunal found that living at the camp was a situation “with regard to employment or any term or condition of employment.” An employment-based complaint was therefore appropriate. The camp owner’s argument that it was not Noel’s employer didn’t succeed. The tribunal found that an employee of the camp owner had committed the discrimination. The company had failed to take any actions to rectify the situation. So it was liable.
Lower court decision
The camp owner successfully appealed the tribunal’s decision to the Court of Queen’s Bench. The appeal judge had the benefit of the Alberta Court of Appeal’s recent decision in Lockerbie & Hole Industrial v. Human Rights etc. Commission regarding “who is the employer,” which was discussed in an earlier edition of Northern Exposure. Applying the reasoning from that case, the judge here found that the camp owner couldn’t be considered Noel’s employer. Noel’s employer was the well-testing company. Her failure to include it in her complaint meant that her complaint couldn’t succeed.
Noel’s alternative would have been to make her complaint against the camp owner on the ground of discrimination in public accommodation. But, as five years had passed since she had made her complaint, it was too late to amend it.
Court of Appeal ruling
Noel appealed to the Alberta Court of Appeal. While sympathetic to her situation, it dismissed her appeal. Applying the Lockerbie test of who was an employer, it upheld the decision of the Queen’s Bench judge. It also agreed that it wouldn’t be fair to allow an amendment to the complaint at this late date. Complaints grounded in employment and complaints grounded in accommodation require different evidence. That evidence wasn’t necessarily available five years later. Moreover, the act has a one-year time limit for filing an amendment.
Lessons for employers
This case emphasizes that if a human rights complaint is employment-based, the employee must name the real employer as a respondent. This requires some unpacking of the relationships linking the various players, which can include accommodation providers and contractors.
When faced with a potential human rights complaint, a respondent should ensure that it is indeed the employer as defined by the governing legislation and the relevant court decisions.
In addition, this case suggests an alternative method by which complaints may be made, especially in remote camp-living situations. Depending on the wording of the applicable human rights statute, a complaint may be grounded in discrimination in relation to accommodations.
Labour, Employment and Human Rights Canadian Webcast February 21, 2013
Attorneys with Fasken Martineau, the authors of Northern Exposure – Employment Law for US Companies with Operations in Canada, invite you to a webcast on Thursday, February 21, 2013, 12:30 p.m.-2:30 p.m. EST. Members of the Canadian law firm will speak on the following topics:
- Workplace Privacy in the Aftermath of the Cole Decision (Dominique Monet, Montréal)
- Accommodating Mental Disabilities and Mood Disorders (Katherine M. Pollock, Toronto)
- Culpable, Non-Culpable and Hybrid Analysis – The Evolving Approach as to the Impact of Disability on Discipline (Lorene A. Novakowski, Vancouver)
Log-in instructions will be sent by e-mail a few days before the seminar. To register, click here.
For American participants: Upon request, Fasken Martineau will file necessary applications to have this seminar recognized by the American Bar Association.
Very interesting and fundamental case. under Dutch law, the existence of a relation of authority between the employer and the employee is essential for the question whether there is a labour agreement, or not. However, self-employed people have more and more gotten under employee protection rights in The Netherlands and the EU.