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, 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:
- The company provided facilities and tools to perform her work;
- The complainant determined where and when to perform the work;
- 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.
- 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. 16
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:
- Was the respondent integral to the workplace of the complainant;
- Did the questioned conduct take place in the workplace;
- Was the complainant’s work performance or work environment negatively effect.
Conduct Extraneous to the Working Relationship
Apart from the above issue, the next issue which frequently arises is whether the relevant conduct has taken place within the context of an employment relationship. Often conduct which is alleged to be offensive based on a human rights violation, particularly when sexual in nature occurs outside of the physical confines of the office or work environment and also often beyond normal working hours.
The cases which follow deal with essentially fact-finding endeavours to determine whether conduct which was external to the work environment in geography or time may nonetheless be work related.
Apart from the analysis of these cases, which clearly advocates a broad liberal approach to the question, any threats of adverse workplace consequences, or conversely positive employment-related rewards based on human rights issues, no matter where such events may occur, are most assuredly within the jurisdiction of the tribunal. 17
The Ontario Court of Appeal in Simpson v Consumers Association of Canada 18 dealt with the issue of conduct which did not take place in the immediate workplace, but rather in settings beyond the physical premises of the office.
This was not a human rights complaint but a civil lawsuit brought by Mr. Simpson against his employer who had terminated him due to allegations of sexual harassment. Mr. Simpson was not only successful at trial, but ironically was also awarded incremental damages for unfair conduct.
CAC appealed successfully. One of the issues considered by the Court of Appeal was the impact of the finding that certain of the alleged events of misconduct took place at locations external to the office premises as the employer was required to prove workplace misconduct.
Three of the occasions alleged against the plaintiff took place at company meetings or retreats held at hotels where business meetings, with a social component, were held. The fact that such events occurred after the completion of business meetings did not mean, the Court determined, that such conduct was outside the workplace and hence external to the employment context.
This conclusion that such events were work-related may have been seen to be predictable, but the events which took place at the plaintiff’s cottage raised a different dimension. Again, the context was seen as work related. Staff had been present at the cottage because the plaintiff was on vacation and his advice was required on certain timely issues. Following the work assignment, the staff were invited to remain and recreate.
Notably, the Court of Appeal overturned the trial judge on this issue:
It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment. The determination of whether, in any particular case, activity that occurs after hours or outside the confines of the business establishment can be the subject of complaint will be a question of fact. In this case, the trial judge erred by making an overall finding without considering the individual circumstances of each incident.
The moral of the story is that a work relationship is not one confined to the office or business premises, but rather a broad contextual view must be applied to determine whether there is an employment connection to the event. 19
A similar conclusion was reached in a human rights context in which the alleged offensive conduct took place at a firm retreat in South Carolina, 20 which was considered to be a team building event.
To the same effect was the finding in a civil trial in the context of an after-event party in a hotel room, which was owned by the employer, attended by employees and spouses, 21 and a barbeque where social aspects of the event were seen as work-related 22, as, in part, the event was seen as a celebration of the progress of the employer.
Essentially the decision maker will make a fact finding analysis to determine if the questioned conduct was in the context of an employment relationship, even though it may have took place off hours and outside the physical boundaries of the workplace setting.
Email messages, twitter and Facebook accounts or other internet postings will also face such a test. There is no reason why such comments made in cyberspace could not fit into the category of workplace communications 23 in the appropriate context.
The decision of the Tribunal in S.S. v Taylor (Flaherty) noted that while some of the events took place outside the business premises of the restaurant, that nonetheless, they were “sufficiently connected” to the workplace to allow for jurisdiction.
More importantly, the decision spoke to the issue that such comments made by the respondent “had job-related consequences” for the applicant:
Importantly, all of the incidents, regardless of where they occurred, had job-related consequences for the applicant. Perhaps the clearest example of this is the applicant’s evidence that could not face returning to work at the Restaurant knowing that her boss and some of her co-workers had thought and talked about her as described in the voicemail message.
The conclusion that “work-related consequences” as the sole factor would allow for jurisdiction appears excessive. If so, any exchange between two people, where ever this may take place, who happen to have the same employer, would give rise to jurisdiction. This factor ought not to suffice as a stand-alone test.
A similar fact based analysis was undertaken in the decision of the Canadian Human Rights Tribunal (Theberge, Dionne and Jakhu) in the December 1992 case of Cluff v Department of Agriculture, in this case finding that there was no activity which took place in the course of the employment relationship and hence declined jurisdiction.
The complainant had alleged that the personal respondent had sexually harassed her at the annual conference organized by her for the Eastern Canada Farm Writers Association. The complainant was then employed by the Department as an information officer, while the personal respondent held the position of program officer. The event was not an employer function but was nonetheless work related.
The complainant’s prime responsibility was the preparation of radio programmes. It was with the approval and support of her employer that she became active on the executive of the ECFWA. Her participation at the conference was agreed to be during normal working hours. Her registration fee for the conference was paid by the employer.
The questioned events took place at the hospitality suite arranged for the conference. Adjoining the suite was a bedroom portion which was separated from the remaining area by an archway, as opposed to a locked door.
The events of the evening affair commenced at 9 pm in the hospitality suite. By 2 a.m., the complainant was alone in the suite accompanied by the personal respondent, also an employee of the Department and senior to her in responsibility and another male person unrelated to the employer. It was between 2 and 3 am that the alleged event of sexual harassment took place.
The following test was adopted for the purpose of determining whether the alleged harassment took place “in the course of employment” and/or “in matters relating to employment”:
An employee is in the course of employment when, within the period covered by the employment, he or she is carrying out:
- activities which he or she might normally or reasonably do or be specifically authorised to do while so employed;
- activities which fairly and reasonably may be said to be incidental to the employment or logically and naturally connected with it;
- activities in furtherance of duties he or she owes to his or her employer; or
- activities in furtherance of duties owed to the employer where the latter is exercising or could exercise control over what the employee does.
The court concluded:
An employee is still in the course of employment when he or she is carrying out intentionally or unintentionally, authorised or unauthorised, with or without the approval of his or her employer, activities which are discriminatory under the CHRA and are in some way related or associated with the employment. However, an employee is considered to have deviated from the course of his or her employment when engaged in those activities which are not related to his or her employment or are personal in nature.
On the facts of the case, it was determined that the complainant’s role in the conference was not one which was mandated as an employment term with the Department which had no control or power over the ECFWA. The attendance of the personal respondent was also not related to his employment. For these reasons, the panel declined jurisdiction.
The decision was reviewed in 1993 by Gibson J. of the Federal Court, who upheld the decision, but for differing reasons which are of significance to the analysis. The Federal Court, in applying the standard of correctness, agreed with the four fold test set out by the Tribunal, noting that these factors are disjunctive.
The Federal Court disagreed with the conclusion that the activities in question were not “in the course of employment” as the first two tests were each met.
The Court concluded, in essence, that once the hospitality suite closed, so did the employment relationship which ended the day for employer liability. Gibson J. stated:
At some time during the night in question, before 2:00 a.m. and at or shortly after the time the hospitality suite effectively closed, the complainant ceased to be in the course of employment or engaged in matters related to employment. To conclude otherwise would place an intolerable burden of responsibility on employers of those who travel in the course of their employment and of those who attend conferences and the like on behalf of their employer.
The issue then being determined was the existence of an employment relationship at the time of the assault. Liability would not necessarily have followed as the federal Code contained a due diligence defence to the employer liability, 24 an issue which was not reviewed. The Court concluded that liability would have automatically followed, which was not correct.
It is difficult to countenance the reasoning that had the harassment occurred during the currency of the social event, apparently an employment relationship would be found, yet an event which took place later in the evening failed to be caught by the relationship which brought her to the evening itself. This decision stands at odds with the reasoning of the British Columbia and Ontario Court of Appeal referenced above and that of the definition of “job-related consequences” set out in S.S. v Taylor.
The test set out by the Federal Court has had a questionable reception. It has been largely ignored in most jurisdictions, yet remains the accepted standard in the Alberta human rights tribunal decisions 25 and the federal human rights tribunal. 26
A subsequent decision of the Ontario Tribunal found that after hours conduct at a bar was sufficient to establish jurisdiction.