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.
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
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.
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
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."
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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