Lockerbie & Hole Industrial Inc. et al. v. Human Rights and Citizenship Commission (Alta.) et al., 2011 ABCA 3

• Judge: Côté, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: December 02, 2010
• Citations: 2011 ABCA 3;(2011), 493 A.R. 295 (CA)

Lockerbie & Hole Ind. Inc. v. HRCC (2011), 493 A.R. 295 (CA);

      502 W.A.C. 295

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JA.056

Lockerbie & Hole Industrial Inc. and Syncrude Canada Ltd. (respondents/respondents/applicants) v. The Director of the Alberta Human Rights and Citizenship Commission and Donald Luka (appellants/appellants/respondents) and Construction Owners Association of Alberta and Construction Labour Relations - an Alberta Association and International Brotherhood of Electrical Workers, Local Union 424 (intervenor)

(0903-0239-AC; 0903-0240-AC; 2011 ABCA 3)

Indexed As: Lockerbie & Hole Industrial Inc. et al. v. Human Rights and Citizenship Commission (Alta.) et al.

Alberta Court of Appeal

Côté, Slatter and Rowbotham, JJ.A.

January 11, 2011.

Summary:

Luka was employed by Lockerbie & Hole Industrial Inc. Lockerbie asked Luka to transfer to their site project with Syncrude Canada Ltd. The caveat to this opportunity was the requirement that Luka pass a pre-access alcohol and drug test that Syncrude insisted all contractors require of their employees. Luka did not pass the test and Lockerbie did not use him on the Syncrude site. Luka did subsequently work on the Syncrude site for a different company. Luka complained to the Human Rights and Citizenship Commission of employment discrimination under s. 7 of the Human Rights, Citizenship and Multiculturalism Act. The Commission held that Syncrude was Luka's employer and allowed the complaint. Lockerbie and Syncrude appealed.

The Alberta Court of Queen's Bench, in a decision reported at 472 A.R. 217, allowed the appeal. The Commission appealed. Interventions were permitted by the Construction Owners Association of Alberta, Construction Labour Relations, and the International Brotherhood of Electrical Workers, Local Union 424.

The Alberta Court of Appeal dismissed the appeals.

Civil Rights - Topic 982

Discrimination - Employment - Employer, employee and employment defined - The Alberta Court of Appeal held that "a contextual approach is required to decide whether a particular relationship qualifies as 'employment' under the [Human Rights, Citizenship and Multiculturalism Act]. A number of factors must be taken into consideration including: - whether there is another more obvious employer involved; - the source of the employee's remuneration, and where the financial burden falls; - normal indicia of employment, such as employment agreements, collective agreements, statutory payroll deductions, and T4 slips; - who directs the activities of, and controls the employee, and has the power to hire, dismiss and discipline; - who has the direct benefit of, or directly utilizes the employee's services; - the extent to which the employee is a part of the employer's organization, or is a part of an independent organization providing services; - the perceptions of the parties as to who was the employer; - whether the arrangement has deliberately been structured to avoid statutory responsibilities. Where it is alleged there is more than one co-employer, the following factors are also relevant: - the nexus between any co-employer and the employee, including whether there is a direct contractual relationship between the complainant and the co-employer; - the independence of any alleged co-employer from the primary employer, and the relationship (if any) between the two; - the nature of the arrangement between the primary employer and the co-employer, for example, whether the co-employer is merely a labour broker, compared to an independent subcontractor; - the extent to which the co-employer directs the performance of the work. Other factors may be relevant in particular cases." - See paragraph 25.

Civil Rights - Topic 982

Discrimination - Employment - Employer, employee and employment defined - Luka was employed by Lockerbie & Hole Industrial Inc. - Lockerbie asked Luka to transfer to their site project with Syncrude Canada Ltd. - The caveat to this opportunity was the requirement that Luka pass a pre-access alcohol and drug test that Syncrude insisted all contractors require of their employees - Luka did not pass the test and Lockerbie did not use him on the Syncrude site - Luka did subsequently work on the Syncrude site for a different company - Luka complained to the Human Rights and Citizenship Commission of employment discrimination under s. 7 of the Human Rights, Citizenship and Multiculturalism Act - At issue was whether Syncrude was an "employer" of Luka within the meaning of s. 7 - The Commission held that Syncrude was Luka's employer and allowed the complaint - The Commission concluded that "employ" meant "utilizing another's services" and concluded that Syncrude utilized Luka's services - Lockerbie and Syncrude appealed - The Queen's Bench judge allowed the appeal - The Alberta Court of Appeal affirmed the decision - Luka was admittedly employed by Lockerbie, he provided his services to it, he was directed and paid by it, and Lockerbie was his employer within the meaning of the Act - He had no contractual relationship with Syncrude, he was not functionally a part of its organization, he did not report to it, and Syncrude did not direct his work - His work did not involve extracting oil from oil sands, or operating Syncrude's plant - His relationship with Syncrude was too remote to justify a finding of employment, even under the expanded meaning given to that term in human rights legislation - See paragraphs 13 to 28.

Words and Phrases

Employer - The Alberta Court of Appeal discussed the meaning of "employer" as used in s. 7(1) of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 - see paragraphs 13 to 28.

Cases Noticed:

Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al. (2008), 425 A.R. 1; 418 W.A.C. 1; 2008 ABCA 83, refd to. [para. 7].

Cunningham v. Alberta (Aboriginal Affairs and Northern Development) - see Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Human Rights and Citizenship Commission (Alta.) et al. v. Kellogg Brown & Root (Canada) Co. (2007), 425 A.R. 35; 418 W.A.C. 35; 84 Alta. L.R.(4th) 205; 2007 ABCA 426, refd to. [para. 8].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 94 Alta. L.R.(4th) 209; 2008 ABCA 268, refd to. [para. 8].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 8].

University of British Columbia v. Berg, [1993] 2 S.C.R. 353; 152 N.R. 99; 26 B.C.A.C. 241; 44 W.A.C. 241, refd to. [para. 8].

Gould v. Yukon Order of Pioneers, Dawson Lodge No. 1 et al., [1996] 1 S.C.R. 571; 194 N.R. 81; 72 B.C.A.C. 1; 119 W.A.C. 1, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 8].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 10].

783783 Alberta Ltd. v. Canada (Attorney General) et al. (2010), 482 A.R. 136; 490 W.A.C. 136; 2010 ABCA 226, refd to. [para. 12].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 13].

Amos v. Insurance Corp. of British Columbia, [1995] 3 S.C.R. 405; 186 N.R. 150; 63 B.C.A.C. 1; 104 W.A.C. 1, refd to. [para. 13].

R. v. Holmes, [1988] 1 S.C.R. 914; 85 N.R. 21; 27 O.A.C. 321, refd to. [para. 13].

Waldick et al. v. Malcolm et al., [1991] 2 S.C.R. 456; 125 N.R. 372, refd to. [para. 13].

Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Maksteel Québec Inc., [2003] 3 S.C.R. 228; 311 N.R. 313; 2003 SCC 68, refd to. [para. 14].

Human Rights Commission (Ont.) v. A et al., [2002] 3 S.C.R. 403; 294 N.R. 140; 166 O.A.C. 1; 2002 SCC 66, refd to. [para. 14].

Pannu, Kang & Gill v. Prestige Cab Ltd. (1986), 73 A.R. 166; 47 Alta. L.R.(2d) 56 (C.A.), refd to. [para. 15].

Cormier v. Human Rights Commission (Alta.) and Block (Ed) Trenching Ltd. (1984), 56 A.R. 351; 33 Alta. L.R.(2d) 359 (Q.B.), refd to. [para. 16].

Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al. (2001), 292 A.R. 86; 2001 ABQB 624, refd to. [para. 16].

Prue, Re (1984), 57 A.R. 140; 35 Alta. L.R.(2d) 169 (Q.B.), refd to. [para. 17].

Rosin v. Canada, [1991] 1 F.C. 391; 131 N.R. 295 (C.A.), refd to. [para. 17].

Bugis v. University Hospitals Board (1990), 106 A.R. 224; 74 Alta. L.R.(2d) 60 (C.A.), refd to. [para. 17].

British Columbia (Minister of Health Services) v. Emergency Health Services Commission et al., [2007] B.C.T.C. Uned. C34; 60 C.H.R.R. D/381; 2007 BCSC 460, refd to. [para. 18].

Canadian Pacific Ltd. v. Canadian Human Rights Commission and Fontaine, [1991] 1 F.C. 571; 120 N.R. 152 (F.C.A.), refd to. [para. 19].

Fontaine v. Canadian Pacific Ltd. - see Canadian Pacific Ltd. v. Canadian Human Rights Commission and Fontaine.

Pointe-Claire (Ville) v. Syndicat des employées et l'employés professionnels - les det de bureau, section locale 57 (S.E.P.B. - U.I.E.P.B. - C.T.C. - F.T.Q.), [1997] 1 S.C.R. 1015; 211 N.R. 1, refd to. [para. 20].

University of Calgary, Re, [2008] A.L.R.B.D. No. 30; 150 C.L.R.B.R.(2d) 15, refd to. [para. 24].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 7(1) [para. 13 et seq.].

Counsel:

D.C.P. Stachnik, Q.C., for the respondent, Lockerbie & Hole Industrial Inc.;

B.B. Johnston, for the respondent, Syncrude Canada Ltd.;

A.M. Chak and A.S. Dean, for the appellants, Director, Alberta Human Rights Commission and Donald Luka;

T.W. Wakeling, Q.C., for the interveners, Constructions Owners Association of Alberta and Construction Labour Relations - An Alberta Association;

W.J. Johnson, Q.C., and E.W. Benedict, for the intervener, International Brotherhood of Electrical Workers, Local Union 424.

These appeals were heard on December 2, 2010, by Côté, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal. The following reasons for judgment reserved of the Court of Appeal were delivered by Slatter, J.A., on January 11, 2011.