Alberta Court of Appeal decides Syncrude was not an employer under human rights legislation.

• Author: McKay-Panos, Linda
• Position: Human Rights Law

It is perhaps ironic that in a decision where the Human Rights Panel ("Panel", currently referred to as "Tribunal") found that there had been no discrimination, one of the respondents used the occasion to appeal the finding that it was an employer under the (then) Alberta Human Rights, Citizenship and Multiculturalism Act ("Act"; currently Alberta Human Rights Act, RSA 2000, c A-25-5), and therefore subject to the Act. Since the structure of the "employment" relationship at issue in this case (Lockerbie & Hole Industrial Inc v Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3; www.albertacourts.ab.ca/ jdb/2003-/ca/civil/2011/2011abca0003.pdf) is commonly practiced in Alberta, the Court of Appeal ruling on whether Syncrude was an employer could have a significant impact on Alberta human rights law.

In brief, Donald Luka was denied access to the Syncrude site in Fort McMurray because he failed a drug test. He had been a long-term employee of Lockerbie & Hole, when they decided to transfer him to the Syncrude site. Lockerbie & Hole had contracts with general contractor Kellogg, Brown and Root to perform work on the Syncrude site. However, Syncrude had a policy that contractors could not bring workers onto the site unless they passed a drug test. Mr. Luka, who failed the required drug test, was a recreational drug user, but was not disabled by an addiction to drugs. The Panel concluded that he was not discriminated against, and thus, the Panel did not have to consider any defence put forward by Lockerbie & Hole, such as an argument that drug testing is a bona fide occupational requirement. The Panel also concluded that Lockerbie & Hole was an employer of Luka because they were in a master and servant relationship. In addition, since "employment" under human rights legislation is not limited to master and servant relationships, it could also include other relationships that involved the "utilization" of services. Because Syncrude was indirectly utilizing the services of Luka through Lockerbie & Hole, the Panel concluded that there was an employment relationship. Thus, Syncrude was properly named as a respondent.

On appeal, Court of Queen's Bench Justice T.D. Clackson concluded that the Panel had been in error in concluding that Syncrude was an employer. He held that while "employer" in the human rights context is not necessarily the same as in the common-law definition (master and servant), it was not wide enough to cover the relationship between "the...