Canada: Further Clarification On The "With Respect To Employment" Threshold Under Ontario's Human Rights Code

In many human rights applications alleging discrimination with respect to employment, the Human Rights Tribunal of Ontario ("HRTO") may proceed directly to a consideration of the evidence and an analysis of the allegations.  In these cases, the existence of an employment relationship between the parties is clear.  Where, however, the precise nature of the relationship between the parties is unique, complex or otherwise unclear, the question of whether Ontario's Human Rights Code (the "Code") is applicable to the relationship becomes a significant issue that is not always easily determined.  Di Muccio v. Newmarket (Town), 2016 HRTO 406 ("Di Muccio") helps clarify the judicial principles and analysis that must be undertaken at a preliminary stage when ascertaining the applicability of the Code.

Background

In Di Muccio, the applicant, Maddie Di Muccio, served on Council for the Corporation of the Town of Newmarket (the "Town") from 2010 until 2014, after which she failed to secure a Council seat during the 2014 municipal elections.  Shortly thereafter, Ms. Di Muccio brought an application (the "Application") to the HRTO alleging discrimination with respect to employment and harassment in the workplace contrary to the Code.   

Miller Thomson represented the Town in responding to the Application.  In response, the Town stressed the policies it has in place prohibiting discrimination and harassment and the seriousness with which it takes its obligations in this regard.  Although the Town strenuously denied Ms. Di Muccio's allegations, it noted that, in any event, she was not in an employment relationship with the Town and that the Application should be dismissed on this preliminary basis.  Specifically, the Town submitted that members of Council are not "employees" and that, as a corollary, sections 5(1) and 7(2) of the Code prohibiting discrimination "with respect to employment" and harassment of "employees" in the workplace do not apply.

The issue considered by the HRTO in this case was whether the Town was Ms. Di Muccio's "employer" and, more broadly, whether members of a municipal council are "employees" for the purposes of the Code.    

Analysis

While the HRTO restated the overarching principle that human rights protections are to be interpreted in a liberal and purposive manner, it ultimately found that Ms. Di Muccio did not have an employment relationship with the Town and that the allegations raised in the Application were not "with respect to employment."  

In reaching this conclusion, the HRTO applied the test formulated by the Supreme Court of Canada in McCormick v. Fasken Martineau Dumoulin LLP, 2014 SCC 39 at para. 23:

Deciding who is in an employment relationship for purposes of the Code means, in essence, examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of a worker. In other words, the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations?

The HRTO noted that the Town did not hire, could not fire, and had no power whatsoever to discipline Ms. Di Muccio or any other members of Council.  The authority to hire, fire and discipline is a hallmark of the employer/employee relationship and its absence will almost always call into question whether such a relationship exists.  Council was also responsible for unilaterally determining its own remuneration, a right enjoyed by few employees and further indicia of Council members' autonomy from the Town.  Accordingly, Ms. Di Muccio did not have an employment relationship with the Town and was not an "employee."  The HRTO held that she was therefore precluded from relying on sections 5(1) and 7(2) of the Code prohibiting discrimination "with respect to employment" and harassment of "employees."

Going Forward

Di Muccio serves as a reminder that although the HRTO's jurisdiction to adjudicate many claims may be obvious, there are circumstances where the Code's applicability is far from clear.  The question of whether the "with respect to employment" threshold has been met will remain a significant issue in many cases going forward, particularly as different work arrangements arise and evolve in the new global economy.  Di Muccio helpfully contributes to the jurisprudence on this interesting topic and importantly clarifies the analytical framework that the HRTO will likely apply when faced with this threshold question.

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