Defining Employment

Human Rights: A Liberal View of Employment

The Workplace

To establish a code violation, there must be an employment relationship. Voluntary employment is also under human rights jurisdiction. 1

An applicant for employment, even where the employment opportunity is denied, will have standing to purse a remedy. As noted by the Ontario Court of Appeal in Imperial Oil:

The tribunal referred to prior authority of the tribunal in support of assessing the appellant’s standing based on whether he had a direct interest at stake in the subject matter of the proceeding: Carasco v. University of Windsor, 2012 HRTO 195. The tribunal also noted that it is settled law in Ontario that job applicants enjoy the protection of the Code before they are formally employed because the wording in s. 5(1) “with respect to employment” has been interpreted to include pre-employment scenarios – that is, it covers discrimination in the job search process.

It then follows that there must be a definition of what types of working relationships may be covered. For example, would a business relationship such as a contractor-principal be covered?

Secondly, presuming that the nature of the relationship is one that falls within the rubric of employment, what type of conduct would then be caught? Must it be confined to the physical premises? Or be within working hours? 2

No Statutory Definition

There typically is not a conclusive definition in the relevant human rights statute setting out what is or is not employment. It is the jurisprudence of the human rights tribunals and the courts which offer interpretation of the term “employment”.

B.C.’s Human Rights Code, for example, does not define employment but does state that this term includes “the relationship of master and servant, master and apprentice and principal and agent, if a substantial part of the agent’s services relate to the affairs of one principal.

Similarly, Nova Scotia’s statute states that an “employer includes a person who contracts with a person for services to be performed by that person or wholly or partly by another person”.

P.E.I.’s Human Rights Act has a comparable provision, as does that of the North West Territories.

Alberta’s Human Rights Act offers no definition or even such an inclusionary provision, as does the equivalent statute in Ontario.

Common Law Test

The first step in the determination of whether there may exist an employment relationship is to apply the common law test. 3 The burden is upon the applicant to prove jurisdiction.

The leading case on this subject is the Supreme Court of Canada decision in 671122 Ontario Ltd. v Sagaz, 4 in which the Court concluded that although there was no direct path to the answer, the accepted popular test was that as set out as below: 5

The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks. 6

Contextual Test

Should the application of this common law test not show an employment relationship, then regard must be had to the principle that a “purposive, functional approach to determining the test of employment” 7 is to be used to determine the jurisdiction of the human rights statute. 8

Accordingly, the relevant test will not be limited to purely a common law employment relationship but rather will include more than the traditional employer-employee relationship, 9 one which is reflective of the broad purposive interpretation required for this remedial legislation.10

A good example of this principle is shown by the conclusion that the use of a management corporation by the applicant would not deprive the tribunal of jurisdiction. 11A similar reflection of this view was found in one case in which a taxi cab brokerage company was found to be covered by the Ontario code in its dealings with the owner of a taxi licence seeking a brokerage company for his licence. 12

The test, as noted by the Supreme Court, is essentially one of control and dependency. 13 The real issue is whether “the employer” is in a position to “remedy any discrimination” and hence whether it “controls working conditions and remuneration” 14 which has created a consequential dependency on the part of the employee. 15

To the same end is a recent Alberta decision, Yaschuk v Emerson. The Tribunal found that the complainant was covered by the Code, even though the business relationship would not meet the test of pure employment.

In Yaschuk 16, the complainant was paid through a management company and the parties created a contract which, amongst other items, denied the relationship was one of employment. The agreement contained these additional terms:

  1. The company provided facilities and tools to perform her work;
  2. The complainant determined where and when to perform the work;
  3. The complainant was not dependent on the respondent and could have sought out other clients.  The complainant had significant control over the performance of her work.
  4. the complainant was permitted to retain subcontractors and did so when the workload was particularly heavy.  The respondent did not have control over the subcontractors.

All this being said, these factors carried the day to establish jurisdiction:

The complainant worked full-time for the respondent. While in theory the complainant’s corporation could have taken on other work, the corporation was a one-person company and the workload for the respondent was heavy, so heavy that a sub-contractor was engaged. The sub-contractor filled in for the complainant if she was absent.  The complainant was wholly dependent upon the respondent for her income.  For much of the time, there were not enough hours in a day for her to earn an income elsewhere.  Moreover, when the complainant did ask about taking on other work, she was told by Emerson’s Director of Operations that any other work would be subject to his approval.

[40]      In order to perform her work, the complainant had to be in the office. If the complainant wanted to have vacation days, she was required to seek approval.  She was also required to advise her supervisor as to her whereabouts if she was not in the office.

[41]      The CEC existed to provide engineering services to its clients.  The complainant was tasked with recruiting those engineers.  It was the respondent that directly utilized and had the direct benefit of her services.  The complainant had access to confidential information and physical access to the entire office.  She was involved in discussions with respect to the division of responsibilities between HR and Operations.  The complainant was an integral part of the respondent’s organization.

Findings which have been made of employment for other legal purposes have been held not to be binding upon the human rights tribunal. 17

Sufficient Connection

The Supreme Court of Canada considered the issue of jurisdiction in a complaint made against a worker of a company, which entity was not the complainant’s direct employer.

S-M worked for a company, Omega and Associates, as a civil engineer on a construction project. Omega was responsible for the oversight of the primary construction general contractor, known as Clemas. One of the employees of Clemas was Schrenk.

S-M accused Schrenk of certain racist and homophobic comments, resulting in S-M making this human rights complaint against him.

Schrenk moved unsuccessfully to strike the complaint before the B.C. Human Rights Tribunal which was followed by an unsuccessful judicial review application. This, in turn, was appealed to the Court of Appeal which sided with Schrenk. The case was then appealed to the Supreme Court of Canada which reinstated the application.

The case then considered this issue of jurisdiction and whether the claim was caught by the employment definition within the statute.

The submission made by Schrenk was that he was not the employer of S-M, nor was he, his superior in the workplace.

The majority decision held that the purpose of the Code was:

not limited to protecting employees solely from discriminatory harassment by their superiors in the workplace. Rather, its protections extends to all employees who suffer discrimination with a sufficient connection to their employment context.

This interpretation was broad enough to encompass adverse conduct by a co-worker, even such a co-worker with a different employer.

The decision noted that human rights laws generally are given a broad and liberal interpretation to allow the fundamental rights to be achieved in society. Indeed it reinforced the view that human rights statutes are quasi-constitutional in nature which hence allows for a “generous interpretation to permit the achievement of its broad political purposes”.

The operative wording of the B.C. Code forbade adverse treatment against a person “regarding employment”. The opening words addressed the issue of such adverse treatment by “a person”, which was read to include a person beyond one with economic authority over the complainant.

These words were seen as prohibiting discriminatory conduct which targeted employees as long as there is a “sufficient nexus between the discrimination and the employment context”.

The test for such a finding will include a review of the following factors:

  1. Was the respondent integral to the workplace of the complainant;
  2. Did the questioned conduct take place in the workplace;
  3. Was the complainant’s work performance or work environment negatively effect.

This issue was again considered in the 2026 B.C. Human Rights Tribunal decision in Chilliwack Teachers’ Association v Neufeld.

The decision confirms that “employment” under human rights legislation is not limited to a formal contractual relationship between an employer and employee. Instead, it is a broader legal concept focused on the impact of conduct on the work environment.

The respondent, a school trustee, was not the direct employer of teachers. He did not hire, fire, discipline, or supervise them in a traditional sense. His conduct consisted of public statements made outside the workplace, primarily on social media.

Despite this, the Tribunal found that his actions were “in respect of employment.”

The reasoning is significant.

First, the Tribunal focused on institutional context. The respondent held a governance role within the school system. That role gave his statements a degree of authority and legitimacy that extended beyond those of a private individual.

Second, the Tribunal examined the connection between the conduct and the workplace. The statements addressed issues directly affecting teachers’ professional environment, including classroom practices and the treatment of students. This created a sufficient nexus to employment.

Third, and most importantly, the Tribunal emphasized impact. The evidence demonstrated that the statements had a real and detrimental effect on LGBTQ teachers, contributing to a hostile or poisoned work environment.

From these factors, the Tribunal adopted a functional approach to “employment.” The question is not simply whether there is a direct employment relationship, but whether the impugned conduct is sufficiently connected to the workplace and has a material impact on employees.

This approach aligns with the Supreme Court of Canada’s decision in British Columbia Human Rights Tribunal v. Schrenk (2017), which confirmed that discrimination “regarding employment” is not confined to traditional employer–employee relationships. The Court held that the central question is whether there is a sufficient nexus between the impugned conduct and the complainant’s employment. In Neufeld, the Tribunal effectively applies this principle, extending human rights liability to a public official whose conduct, while external to the workplace, had a demonstrable impact on the work environment.

This represents a meaningful expansion of the concept.

Historically, employment discrimination cases have focused on tangible workplace actions: dismissal, discipline, failure to accommodate, or harassment within the workplace. Neufeld confirms that conduct outside the workplace, including public speech, may fall within human rights jurisdiction where it affects the work environment.

The decision also reinforces the breadth of the “poisoned work environment” doctrine. A workplace may be rendered discriminatory not only by internal conduct, but also by external statements made by individuals who hold positions of authority within the organization or institution.

The implications are significant.

Organizations and governing bodies must recognize that:

  • legal responsibility is not confined to formal employment relationships
  • authority figures may attract liability for conduct occurring outside the workplace
  • the reach of human rights legislation extends to conduct that shapes the conditions under which employees work

The central takeaway is this: “employment” in human rights law is defined less by structure and more by effect.

Where conduct has a sufficient institutional connection and materially affects the workplace, it may fall within the scope of employment—even in the absence of a traditional employment relationship.

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Footnotes

  1. Rocha v Pardons and Waivers of Canada, 13398135 Ontario Limited (Keene) Reconsideration request denied.
  2. It is to be noted that while a finding of an employment relationship may be a pre-cursor to jurisdiction of the human rights code to a workplace sexual harassment complaint, this does not automatically lead to employer liability for a sexual harassment complaint in all jurisdictions. This is discussed in detail subsequently.
  3. See for example, Payette v Alarm Guard Services (Dimovski) in which this test was successfully applied. A reconsideration motion was dismissed by the Tribunal (Doyle). See also D’Alesio v Walker Real Estate
  4. The case involved the determination of employment status as an issue in the argument of vicarious liability, as a finding of an employment relationship would have been most beneficial as a stepping stone to the establishment of vicarious liability.
  5. The Supreme Court also noted that the language which the parties may have chosen to define their relationship will not be determinative of the court’s finding. 
  6. The cited reference reflected the words of MacGuigan J.A. in a tax case, Wiebe Door Services Ltd v MNR, 87 DTC 5025
  7.   Szabo v. Poley, 2007 HRTO
  8. Much to the same effect is the decision of the Alberta Court of Appeal in 1986 in Re Reference re Individual’s Rights Protection Act dealing with taxi cab drivers and their broker, also known as Pannu v Prestige
  9.   Payne v. Otsuka Pharmaceuticals Co Ltd.
  10. Canada (Attorney General) v. Rosin  Federal Court of Appeal,
  11. Sutton v Jarvis Ryan (Sengupta) HRTO
  12. Chaudhry v Choice Taxi (Reaume) HRTO
  13.   As in McCormick v Fasken Martineau
  14. as above
  15. Also Payne v Otsuka Pharmaceutical
  16. The complainant began an unsuccessful review proceeding which was dismissed without a hearing on the merits
  17. See Pannu v. Prestige Cab Alberta Court of Appeal 1986; Yu v. Shell Canada 2004 B.C. Human Rights Tribunal and Szabo v. Poley,2007 HRTO and McCormick