Following the Supreme Court of Yukon’s decision regarding Molloy v Property Management, Yukon Government, the Yukon Human Rights Board of Adjudication (“the Board”) decided to revisit the complaint. The Board considered the following issues:
- Was the Complainant engaged in employment when the alleged discrimination occurred?
- If so, did the Respondent interfere with the Complainant’s employment, or any aspect of his employment when it removed its employees from training the Complainant was retained by YTEC to facilitate, contrary to section 9(b) of the Yukon Human Rights Act (“the Act”), which prohibits discrimination in connection with any aspect of employment?
- If so, was this interference based on the Complainant’s criminal record?
- If the Complainant’s criminal record was a factor, did the Respondents have reasonable cause for this decision, based on reasonable requirements or qualifications for the work Complainant was doing, or because the Complainant’s criminal record was relevant to the work he was doing?
- If discrimination is found, what remedy is appropriate?
First, the Board found that the Complainant was engaged in employment when the alleged discrimination occurred. The Complainant was an independent contractor and his services were being used by the third-party organization to train the Respondent’s employees. The fact that the Complainant was an independent contractor does not determine whether he was engaged in employment for the purposes of the Act. Therefore, the Court found that the Complainant was engaged in employment with the third-party organization. That being said, the third-party organization was not the respondent in this case. Therefore, it is necessary to look at the relationship between the Complainant and the Respondent and consider whether that relationship is protected under Yukon human rights law.
Second, the Board found that the Complainant was not engaged in employment with the Respondent. Nonetheless, the Court found that the Respondent clearly interfered with the Complainant’s opportunity to continue participating in the work he retained to do for the third-party organization.
To begin its analysis on the second issue, the Board used a contextual approach (see Luka v Lockerbie & Hole and Syncrude Canada) to determine whether the Complainant was engaged in employment with the Respondent. The Board’s analysis was comprised of the following questions and answers:
- What there another obvious employer involved? In this case, the Board had already found that the Complainant was engaged in employment with the third-party organization. Therefore, the third-party was the most obvious employer.
- Who paid the Complainant? Although the third-party organization paid the Complainant, the funding came from the Respondent. However, when the Respondent pulled its employees from the workshop, the third-party organization did not bill the Respondent and bore the financial burden itself.
- Were there signs of employment, such as employment agreements, collective agreements, payroll deductions, and T4 slips? This was not relevant, as the Complainant was an independent contractor to the third-party organization – and not an employee in the traditional sense.
- Who controlled the activities of the Complainant? The third-party retained the Complainant’s services and directed his activities.
- Who directly benefited from the Complainant’s services? The Respondent’s employees were to benefit directly from the workshop, but the third-party organization would have also benefited as the Respondent was supposed to pay for the third-party organization for providing the workshop.
- To what extent was the Complainant part of the employer’s organization? The Complainant was part of neither the third-party organization, nor the Respondent’s organization.
- What were the perceptions of the parties as to who was the employer? No one perceived that the Respondent employed the Complainant.
- Was the arrangement deliberately set up to avoid legal responsibilities? There was no evidence of this.
- Was there a direct contractual relationship between the Complainant and the Respondent? There was no direct contractual relationship between the Respondent and the Complainant.
- Was the Respondent independent from the third-party organization? There was a contractual relationship between the third-party organization and the Respondent.
- What was the nature of the arrangement between the third-party organization and the Respondent? The relationship was that of an independent contraction relationship for the provision of a specific service.
- To what extent did the Respondent control the Complainant’s performance of the work? The Respondent could direct the content of the workshop but the third-party organization controlled how it was delivered.
Based on these findings, the Board found that the Complainant was not engaged in employment with the Respondent.
Next, the Board asked whether the Respondent’s actions still constituted discrimination “with any aspect of employment”, as stated in section 9(b) of the Act. Section 14(2)(a) lists “aspects of employment as “the opportunity to participate… in the employment”. In this case, by removing its employees from the workshop, the Respondent effectively created a situation where the Complainant lost the work he had been retained to do for the third-party organization.
Fourth, the Board found that the Respondent did not discriminate against the Complainant on the basis of his criminal record. The primary reason why Respondent cancelled the workshop was the concern raised about the safety of employees. There was no evidence that the motivation behind the Respondent’s decision was based on his criminal record. Rather, the evidence was that the Respondent’s decision was based solely on its responsibility for the health and safety of the employees. The Board found that this was credible given the Complainant’s past actions and conduct in the Respondent’s workplace.
As the Board did not find discrimination, the fifth issue was no longer relevant. The complaint was dismissed.