In MacKay v. Civeo Corporation and another, 2024 BCHRT 271, the British Columbia Human Rights Tribunal (the “Tribunal”) reaffirmed the principle that human rights protections in employment contexts extend beyond the employer-employee relationship. This decision is a recent application of the Supreme Court of Canada’s landmark decision in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 (“Schrenk”), and offers important guidance for site owners, contractors, and lodge providers engaging with third-party workers.
Background
The Complainant was a fly-in/fly-out worker on the LNG Canada Project (the “Project”). His employer was a subcontractor of LNG Canada and arranged housing for its employees at a lodge operated by Civeo Corporation (“Civeo”). Following a canine search, cannabis was discovered in the Complainant’s room—contrary to Civeo’s lodge rules. Neither the Complainant nor his employer had informed Civeo that he required an exemption from those rules. Civeo notified his employer, and issued a lodge ban. JGC Fluor BC LNG JV (“JFJV”) removed the Complainant’s security access to the Project and put him on a no-access list.
The Complainant engaged with his employer and union with respect to the basis for his possession and use of cannabis. The Complainant’s employer told him that that he could not return to the Project until he arranged his own lodging, or the lodge ban / access restriction was removed. The employer also required the Complainant to undergo an Independent Medical Examination before he could return to work, which he declined. Approximately 6 weeks following the discovery of the cannabis, the Complainant’s employment was terminated, and another employee was dispatched to the Project in his stead.
While the Complainant initially named his employer as a respondent to his human rights complaint, he subsequently withdrew the complaint against it. However, he continued to pursue his complaint against Civeo and JFJV (collectively, the “Respondents”), neither of which he had an employment relationship with. His complaint alleged discrimination on the basis of disability in the areas of employment and services customarily available to the public.
The Tribunal’s Application of Schrenk
The Respondents sought dismissal of the complaint under section 27(1) of the BC Human Rights Code on the basis that the complaint lacked a reasonable prospect of success. Central to their argument was the absence of an employment relationship and an obligation to accommodate the Complainant – which they argued rested with his employer. The Respondents also argued that they did not provide site access or lodging to individuals not employed on the Project, and therefore the Complainant could not have been accommodated as he was not employed by any company working on the Project.
The Tribunal rejected this latter argument, citing Schrenk to support a broader interpretation of “discrimination regarding employment”. In Schrenk, the Supreme Court of Canada held that individuals outside the employment relationship can still be liable for discrimination “regarding employment” where their conduct has a sufficient nexus to the employment context. The Tribunal considered the following three key factors from Schrenk in its analysis:
- Integration into the workplace: whether the respondent was integral to the complainant’s workplace;
- Location of the conduct: whether the impugned conduct occurred in the complainant’s workplace; and
- Impact on employment: whether the complainant’s work performance or work environment was negatively affected.
Applying these factors, the Tribunal held that evidence at a hearing may be sufficient to demonstrate that the Respondents were integral to the Complainant’s workplace, and that their actions (i.e., the lodge ban and access restriction) were sufficiently connected to his employment.
As a result, the Tribunal concluded that the complaint warranted a hearing on the merits as the Complainant had taken the allegations of discrimination “out of the realm of conjecture”, and did not grant early dismissal of the complaint as the Respondents had requested.
Takeaways for Employers
This decision serves as an important reminder that human rights obligations in employment contexts are not confined to employers. Entities such as site owners, lodge providers, and contractors may be held accountable where their actions may impact a third-party worker’s employment. Employers are well advised to seek legal counsel if they need assistance navigating human rights and accommodation issues involving third-party workers in labour projects and multi-party work environments.
We will continue to monitor this case for the Tribunal’s decision on the merits of the complaint and provide readers with necessary updates.
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