The Alberta Court of Appeal has recently added to the ongoing debate over who is or isn’t an employer in the human rights context. The dismissal of the complainant’s appeal in 375850 Alberta Ltd. v. Noel (PDF), illustrates that naming the correct employer is vital to the outcome.
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 accommodation for her in a camp owned by 375850 Alberta Ltd. Although she had a locked room there, Ms. 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. They took no action. The police did. The responsible employee was convicted of a criminal offence.
Human Rights Tribunal Decision
Ms. 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 (PDF), found in favour of Ms. 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 under the Human Rights Act. The camp owner’s argument that it was not Noel’s employer did not 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. It was therefore liable.
Lower Court Decision
The camp owner successfully appealed the Tribunal’s decision to the Court of Queen’s Bench (PDF). The appeal judge had the benefit of the Alberta Court of Appeal’s recent decision in Lockerbie & Hole Industrial v. Human Rights etc. Commission, an earlier case about “who is the employer”, discussed in an earlier edition of HR Space. Applying the reasoning from that case, the judge here found that the camp owner could not be considered Noel’s employer. Ms. Noel’s employer was the well-testing company. Not having included it in her complaint, she could not succeed.
Ms. 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 Ms. Noel had made her complaint, it was too late to amend it.
Court of Appeal Ruling
Ms.Noel appealed to the Alberta Court of Appeal. While sympathetic to Ms. Noel’s situation, it dismissed her appeal. Applying the Lockerbie test of who is an employer, it upheld the decision of the Queen’s Bench judge. It also agreed that it would not be fair to allow an amendment to the complaint at this late date. A complaint grounded in employment and one grounded in accommodation require different evidence. That evidence was not necessarily available five years on. 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 complainant 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 style situations. Depending on the wording of the applicable human rights statute, a complaint may be grounded in discrimination in relation to accommodations.
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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