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 RightsPanel
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 held that it is also necessary to
consider factors such as the nexus between any co-employer and the
employee, the nature of the arrangement between the primary
employer and the co-employer (e.g. independent subcontractor) and
the extent to which the co-employer directs the performance of the
In the case at hand, the Court of Appeal held that the
complainant's relationship with Syncrude was too remote to
justify a finding of employment, even under an expanded meaning of
that term. The complainant provided his services to Lockerbie
& Hole and was directed and paid by it. He had no
contractual relationship with Syncrude, was not functionally a part
of its organization and did not report to Syncrude, and Syncrude
did not direct his work.
The Lockerbie decision has far-reaching implications
for site owners, contractors, subcontractors and other
employers. In particular, it should provide greater business
and operational certainty for site owners who control, and adopt
policies regulating access to, a work site. For purposes of
the Act at least, in most circumstances, such site owners will not
likely be considered to be "employers" of the potentially
large number of contractors and subcontractors who work on-site,
even though the site owners ultimately receive the benefits of the
services of those contractors and subcontractors.
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