Your employee is required to pass a drug test before being
assigned to another company's worksite. The employee fails
the other company's drug test and is denied the work. The
employee can clearly file a human rights complaint against you as
his or her employer. But can he or she go after the other
company? The Alberta Court of Appeal has recently said
Donald Luka was an electrician employed by Lockerbie &
Hole. In 2004, Lockerbie decided to transfer Luka to a major
construction project on a Syncrude-owned site in Fort McMurray,
Alberta. Syncrude's safety policy required workers to pass
a drug test before they could be admitted onto the site. To
comply with this policy, Lockerbie directed Luka to obtain a drug
test. Luka tested positive for marijuana and was refused the
position on the Syncrude site. Luka lodged a human rights
complaint alleging that he suffered from a disability in the form
of an addiction and that his employers - Lockerbie and Syncrude -
had discriminated against him.
The Panel Ruling
Luka's complaint ultimately failed - the Alberta Human Rights Panel found that
Luka was a recreational user of drugs rather than addict entitled
to protections under the Human Rights Act.
The specific complaint, however, took a backseat to the issue of
who was an employer under the Act. Because the Act does not
define "employer", the Panel cobbled together a
definition of "employer" from a number of different
sources, including employment law and past Panel decisions. In
concluding that Syncrude was also Luka's employer, the Panel
referenced Syncrude's control of the worksite, focusing in
particular on the fact that it was Syncrude's drug-testing
policy which had effectively curtailed Luka's
employment. The Panel was also concerned that if Syncrude was
not an employer then an employee in Luka's position might have
no remedy under the Act.
Lower Court Appeal
Both Syncrude and Lockerbie appealed the Panel's finding
that Syncrude was Luka's co-employer. The Court of Queen's Bench disagreed with
the Panel's finding, and ruled that Syncrude was not an
employer under the Act. The Panel appealed this ruling to the
Alberta Court of Appeal.
Court of Appeal Defines "Employer"
While it declined to create a categorical definition for an
employer, preferring a contextual approach, the Alberta Court of Appeal set out a number of
factors that should be considered in determining who is an
whether there is another more obvious employer;
the normal signs of employment (who makes payroll deductions,
sends tax forms, etc.);
who directs and controls an employee's activities,
including the power to hire, dismiss and discipline;
who has the direct benefit of, or directly uses the
the extent to which the employee is part of an independent
organization providing services;
the employee's perceptions of who was the employer;
whether the arrangement was deliberately structured to avoid
In addition, the Court listed factors to be specifically
considered in a potential co-employer situation:
what kind of relationship exists between the two potential
employers (ie: a direct contract);
the degree of independence and nature of the arrangement
between the two potential employers; and
the extent to which the potential second employer directs the
performance of the work.
Syncrude Was Not an Employer
The Court applied these factors to Luka's relationship
with Syncrude and determined that Syncrude was not an employer
under the Act. The Court also made a special point of noting
that the Panel's concern that an employee might be left without
a remedy was not a reason to find that Syncrude was an employer
under the Act. By design, the Act only prohibits
discrimination in certain relationships, and thus leaves open the
possibility that there may be situations in which no remedy is
An Employer-Friendly Decision
This employer-friendly decision narrows the definition of
"employer" to significant relationships with direct
control. For employers who contract work out, this means that
it is less likely that a contractor or subcontractor's employee
will be able to successfully bring additional employers into a
human rights claim. In addition, Lockerbie provides a
list of factors that employers across the country can use to
evaluate their risk of being considered an "employer" in
the human rights context.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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