When working with independent contractors or the self-employed,
companies should be aware that the Human Rights Code protections may
still apply. A
recent decision of the Human Rights Tribunal reiterates the
fact that discrimination and harassment can be found "with
respect to employment" even in the absence of a traditional
The decision dealt with the application of a self-employed
commission salesperson who worked under the supervision of a man
who was the broker of record at the brokerage firm that the
saleperson worked at. The salesperson alleged that she was harassed
by the supervisor, beginning at a holiday party, and following with
many inappropriate comments and unwanted physical approaches the
next year. She confronted him, and eventually resigned.
The tribunal found that even when a relationship is considered
one of self-employment or independent contractor for taxation or
other legislative purposes, human rights statutes should be given a
fair, large, and liberal interpretation to fulfill their purpose.
As such, the salesperson was entitled to the protections of the Human Rights Code that were laid out
"with respect to employment", including protection
against sexual harassment. The fact that she could have worked out
of any brokerage was not decisive, given that she was in fact only
working exclusively for the one brokerage under the supervision of
the broker of record.
This decision reinforces that while a person may not be
considered an employee for some purposes (such as taxation), they
may still be entitled to other employee rights like those provided
by human rights statutes.
Written with the assistance of Kira Misiewicz, articling
Norton Rose Fulbright Canada LLP
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