Lockerbie and Hole Industrial v. Alberta Human Rights Commission – 2011 ABCA 3 – Jan 11, 2011
The Alberta court of Appeal considered the question of whether an employee of a true independent contractor to Syncrude Canada was an employee, broadly stated of Syncrude, for the purposes of Alberta human rights legislation.
There an oil sands worker had complained of discrimination by Syncrude following from a failed drug test. The Commission had found Syncrude to be the “co-employer”, broadly stated. The Queen’s Bench level on review had reversed that finding, relying on the traditional common law tests as to who is an employee.
The ACA dismissed the Appeal, finding that the worker was not employed by the head contractor for the purposes of Alberta human rights legislation.
The ACA distinguished a number of earlier Alberta appeal level and other cases which had found employment, broadly defined, did exist for the purposes of Human Rights. These were cases in trucking, taxi driving, and roofing as well as policing and the army.
The court pointed to the “Two Employer” cases – like Reid (BCCA), CP (FCA) and asked the question “whether there is another more obvious employer involved”, among other questions.
In the result the ACA rejected the “co-employer” finding, but without any reference to the “quasi-constitutional nature” of human Rights legislation. It arrived at what may appear to be a contradictory opinion to that in the OCA, but perhaps one distinguishable as having been analyzed as a “Two Employer” case where some employer could be found to advance the purposes of the statute.