Category Archives: Labour/Employment

Supreme Court of Canada May Finally Clear up Issue of “Employment” in Human Rights Cases

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Case commented on: Fasken Martineau DuMoulin LLP v British Columbia (Human Rights Tribunal) 2012 BCCA 313; leave to appeal granted, Michael McCormick v Fasken Martineau Dumoulin LLP, 2013 CanLII 11313 (SCC).

I have written a number of posts (see for example here and here) about the narrowing interpretation given to “employment” in discrimination cases under the Alberta Human Rights Act, RSA 2000 c A-25.5. Since the Act protects individuals from discrimination in five areas (employment, notices, tenancy, services and accommodation, and trade unions), on several grounds (e.g., age, gender, race, colour, place of origin, ancestry, source of income, religious beliefs, family status, marital status, physical disability, mental disability, or sexual orientation), if the discrimination does not occur in an area defined as “employment” (or any of the other four areas) then the complainant cannot obtain a remedy under the Act. Consequently, one way that respondents seek to counter human rights complaints is by establishing that they do not fit within the current definition of “employment”, and hence the Commission does not have jurisdiction to deal with the complaint. As noted previously, the narrowing interpretation of “employment” seems to counter the overarching educational and remedial purpose of human rights law, and the “large and liberal interpretation” that is supposed to be given to provisions in the Act.

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Defining “Employment” Continues to be a Challenge—Even Outside of the Human Rights Process

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Cases commented on: Van Lent v Place, 2013 ABQB 494; Lovely v Prestige Travel Ltd., 2013 ABQB 467

Some previous posts on ABlawg (see, for example here) have addressed the narrowing of the definitions of “employee” and “employment”, particularly in Alberta human rights cases, and the implications of these decisions. Two recent decisions outside of the human rights realm demonstrate both the importance and implications of finding an “employment” relationship.

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End? of a “Twenty-two-Year Odyssey” for Delorie Walsh

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Case commented on: Walsh v Mobil Oil Canada, 2013 ABCA 238.

While several blogs have been written on the Walsh v Mobil Oil Canada case (see here, here and here), I was hoping not to have to write yet another one, and I really hope that the matter has come to a final conclusion, but I almost hesitate to so state. As noted by the majority of the Alberta Court of Appeal (Justices Paperny and McDonald, with Justice O’Ferrall concurring in the result), Ms. Walsh could not have known that when she filed her discrimination complaint against her former employer in 1991, it would lead to the termination of her employment and to a “22-year odyssey” to seek a remedy for her situation. As noted by the Court, Walsh appeared before the Human Rights Tribunal four times, the Court of Queen’s Bench twice, and this current case is Ms. Walsh’s second time before the Alberta Court of Appeal.

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Under the Influence: The Alberta Court of Appeal and the Test for Discrimination

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Cases commented on: Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, leave to appeal denied, 2013 CanLII 15573 (SCC); Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47, leave to appeal application filed, April 15, 2013, SCC

On March 28, 2013 the Supreme Court of Canada denied leave to appeal in the case of Wright v College and Association of Registered Nurses of Alberta. Linda McKay-Panos blogged on that case here; it involves a claim of discrimination by two nurses with opioid addictions who were disciplined by their professional association after stealing narcotics from their employers. A majority of the Alberta Court of Appeal (per Slatter, JA, Ritter JA concurring) held that there was no discrimination and thus no duty to accommodate the nurses, using an approach that focused on stereotyping, prejudice and arbitrariness. Writing in dissent, Justice Berger undertook a traditional prima facie discrimination analysis and decided that the nurses had experienced discriminatory treatment. This split reflects a wider uncertainty about the appropriate test for discrimination under human rights law, and in particular the extent to which the approach to discrimination under section 15 of the Charter should have an influence. In the Supreme Court’s most recent human rights judgment, Moore v British Columbia (Education), 2012 SCC 61 (per Abella J), the Court declined to explicitly clarify the proper test, yet implicitly indicated that the traditional prima facie approach to discrimination is correct. Perhaps that is why the Court decided not to hear the appeal in Wright, which was decided before Moore. A more recent Court of Appeal decision, Lethbridge Regional Police Service v Lethbridge Police Association, was decided after Moore, yet Justices Martin, Watson and Slatter maintained a focus on stereotyping as the defining feature of discrimination. Worse, Lethbridge Police seems to impose additional burdens on complainants in human rights cases. This post will critically consider the Alberta Court of Appeal’s approach to discrimination and argue that the Supreme Court should grant leave to appeal in Lethbridge Police to clarify the proper test.

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Random Drug and Alcohol Testing Policy Implicates Safety, Privacy, Human Rights and Civil Liberties

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Case commented on: Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc. 2012 ABCA 307 (“CA”)

The issue of random drug and alcohol testing in the workplace has now reached national importance. The Supreme Court of Canada recently granted leave to appeal in such a case. See: Communication, Energy and Paperworkers Union of Canada, Local 30, v Irving Pulp & Paper Ltd., 2011 NBCA, leave to appeal to Supreme Court of Canada (“SCC”) granted: 2012 CanLII 14844 (SCC), (“Irving”). It is likely the SCC will hear this case in December 2012 (Jeff Gray, “Supreme Court to rule on random alcohol testing” The Globe and Mail 08 May 2012). Alberta has a keen interest in the outcome of this case as it has its own pending cases.

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