375850 Alberta Ltd. Appellant - v. -, 2011 ABQB 218

Court of Queen ’ s Bench of Alberta Citation: 375850 Alberta Ltd. v. Noel, 2011 ABQB 218 Date: 20110404 Docket: 1003 17381 Registry: Edmonton Between: 375850 Alberta Ltd. Appellant - and - Beverley Noel and the Director of the Alberta Human Rights Commission Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I.

Introduction [ 1 ] On September 16, 2010, a tribunal of the Alberta Human Rights Commission (the “Tribunal”) upheld a complaint of gender discrimination in employment filed against 375850 Alberta Ltd. by Beverly Noel under what is now s. 7(1) of the Alberta Human Rights Act , R.S.A. 2000, c. A-25.5 (the “Act”). The Tribunal awarded Ms. Noel $5,000.00 in general damages and one year’s wages. The Appellant 375850 Alberta Ltd. appeals that decision pursuant to s. 37(1) of the Act on the basis it was not Ms. Noel’s employer and, therefore, the complaint could not succeed under s. 7(1) of the Act.

The Director of the Alberta Human Rights Commission (the “Director”) cross appeals the remedy granted by the Tribunal.

II. Facts [2] Beverley Noel accepted employment with Dy-Kel Services Ltd. (“Dy-Kel”), a company involved in well testing in the oilpatch near Manning, Alberta. Dy-Kel arranged and paid for her accommodation at the Hamburg Open Camp (the “Camp”), a workers’camp owned by the Appellant, 3475850 Alberta Ltd. Mr. Edwin Wiebe is a Director of the Appellant. [3] According to findings made by the Tribunal, Ms. Noel completed a work shift on February 21, 2006 and returned to herroom. She emerged from her shower unclothed to discover a camp maintenance employee, Mr. Jacob Chernish, standing in the doorwaywatching her.

She yelled at him, telling him to leave her room. When he did not, she asked him what he wanted and he replied that shehad left her keys in the door. She ordered him to leave, got dressed, and confronted him in the hall, asking him what business he had inher room. He accused her of smoking marijuana in the room. [4] The following day, Ms. Noel was asleep in bed. She awoke to find Mr. Chernish standing in her room. He again accused herof smoking marijuana there. Ms. Noel told her immediate supervisor what had occurred, and then the Camp manager, who advised herthat he would speak with Mr. Chernish.

The manager referred her to Mr. Wiebe, who was in Edmonton. She spoke with him on twooccasions, but he hung up on her when she asked him to wait while she went to retrieve a note of apology and explanation written to her on February 27th by Mr. Chernish. Ms. Noel was unable to contact Mr. Wiebe again. [5] Ms. Noel began to keep a steak knife under her pillow for self defence. On one occasion, when she returned to her room, shefound the steak knife blade broken. As a result of this event, she started sleeping in her truck. Eventually, she quit her job and left thecamp. [6] Ms.

Noel took the matter to the RCMP and charges were laid against Mr. Chernish. On January 25, 2007, he was convictedof one count of entering a dwelling house with intent to commit an indictable offence in relation to the February 22, 2006 incident. [7] On April 7, 2006, Ms. Noel filed a complaint against the Appellant and Wiebe Construction under s. 7(1) of the HumanRights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, now s. 7(1) of the Alberta Human Rights Act (the “Act”) alleginggender discrimination in employment, specifically sexual harassment. Section 7(1)(

b) of the Act prohibits an employer fromdiscriminating against any person with regard to employment or any term or condition of employment because of the gender of thatperson or of any other person. [8] The matter was heard by the Tribunal on July 19 and 20, 2010. In a decision dated September 16, 2010, the Tribunal upheldthe complaint, finding that the Appellant had discriminated on the basis of gender in relation to the employment of Ms. Noel. [9] In considering whether the incidents in issue constituted the type of behaviour prohibited by s. 7(1)(

b) of the Act, theTribunal relied on the following characteristics listed by the Canadian Human Rights Tribunal in Robichaud v. Brennan, at para. 25, upheld by the S.C.C. at (SCC), [1987] 2 S.C.R. 84: (1) it is unsolicited by the complainant, unwelcome to the complainant and expressly or explicitly known to be unwelcome by therespondent; (2) the conduct must be persisted in despite protest by the subject of the sexual advances or, if not persistent, the rejection of theconduct must have had adverse employment consequences; and (3) if the complainant cooperates with the alleged harassment, such compliance must have been secured by employment-relatedthreats or promises.

[ 10 ] The Tribunal found that the Appellant knew, as a result of Ms. Noel’s adverse reaction after the first intrusion, that Mr. Chernish’s presence was unwanted. It noted that the Appellant did not take any steps to address the incident of intrusion and the effect it had “on their employee.” The Tribunal took from the fact that Mr. Chernish had used his passkey and stood beside Ms. Noel’s bed while she was sleeping, that sexual harassment had occurred and it found that this was a repeated incident of intrusion. The Tribunal was of the view that the incident with the broken knife indicated that Mr.

Chernish or someone else had entered Ms. Noels’ room in her absence in an attempt to send a harassing message to her. It determined that there had been three intrusions into her private space and, despite this the Appellant took no steps to address the concerns raised by Ms. Noel. As a result, she was traumatized, lived in constant fear and had to find other living accommodations. [ 11 ] The Tribunal found that the events described constituted prima facie discrimination. It considered that living at the Camp fell under the “with regard to employment, or any term or condition of employment” wording in s. 7(1) (

b) of the Act . The Tribunal accepted that there is a positive obligation on employers to take active steps to prevent sexual harassment in the workplace from happening and a duty to act immediately and effectively to end it if it becomes aware that sexually harassment is occurring. It found that when Ms. Noel notified the Appellant’s representative by telephone of the first intrusion, a “reasonable person” could have installed a simple, inexpensive device such as a sliding deadbolt, which would have enabled Ms.

Noel to secure the door when she was occupying the room while still enabling cleaning and maintenance staff access as required. [ 12 ] The Tribunal rejected the Appellant’s argument that because Ms. Noel was not its employee, it was not required to take direct action, noting that Mr. Chernish was an employee of the Appellant’s. The Tribunal held that it was insufficient for the Appellant to simply rely on the criminal justice system, without taking any action on its part to rectify the situation. [ 13 ] The Tribunal concluded that agents for the Appellant discriminated against Ms.

Noel contrary to the provisions of the Act and that, as a result, Ms. Noel suffered depression, feelings of fear and violation, had recurring nightmares and experienced problems with her appetite, sleep, and finding employment. It determined that the sexual harassment had a significant effect on Ms. Noel’s emotional well being. The Tribunal awarding her $5,000.00 in general damages for the trauma, pain and suffering she had experienced. The Tribunal Chair indicated that a larger general damages award was not granted “due to the facts found by the Provincial Court in their judgment regarding the actions of Mr.

Chernish.” The Tribunal also awarded 12 months of lost wages to put Ms. Noel back in the position she would have been had there been no discrimination, together with interest on the general damages and lost wages awards. [ 14 ] The Appellant, pursuant to s. 37(1) of the Act , appeals the decision on the basis it was not Ms. Noel’s employer and, therefore, the complaint could not succeed under s. 7(1) of the Act. The Director of the Alberta Human Rights Commission cross appeals the remedy granted by the Tribunal. III. Issue [ 15 ] The issues on this appeal include: A. What is the appropriate standard of review? B.

Did the Tribunal’s

interpretation of s. 7(1) (

b) of the Act meet that standard of review? IV. Legislation [ 16 ] The relevant provisions of the Act include the following:

4. No person shall (

a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or (

b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public, because of the race, religious beliefs, colour, gender, physical disability, mental disability, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons or of any other person or class of persons. 7(1) No employer shall (

a) refuse to employ or refuse to continue to employ any person, or (

b) discriminate against any person with regard to employment or any term or condition of employment. because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or of any other person. 32(1) A human rights tribunal (

a) shall, if it finds that a complaint is without merit, order that the complaint be dismissed, and (

b) may, if it finds that a complaint has merit in whole or in part, order the person against whom the finding was made to do any or all of the following: (

i) to cease the contravention complained of; (ii) to refrain in the future from committing the same or any similar contravention; (iii) to make available to the person dealt with contrary to this Act the rights, opportunities or privileges that person was denied contrary to this Act ; (iv) to compensate the person dealt with contrary to this Act for all or any part of any wages or income lost or expenses incurred by reason of the contravention of this Act; (

v) to take any other action the tribunal considers proper to place the person dealt with contrary to this Act in the position the person would have been in but for the contravention of this Act.

(2) A human rights tribunal may make any order as to costs that it considers appropriate.

. . . 37(1) A party to a proceeding before a human rights tribunal may appeal an order of the tribunal to the Court of Queen’s Bench by application filed with the clerk of the Court at the judicial centre closest to the place where the proceeding was held. . . .

(4) The Court may (

a) confirm, reverse or vary the order of the human rights tribunal and make any order that the tribunal may make under

section 32, or (

b) remit the matter back to the tribunal with directions.

(5) Commencement of an appeal under this

section does not operate as a stay of proceedings under the order of the human rights tribunal unless the Court so orders. V. Analysis A. What is the Appropriate Standard of Review? [ 17 ] The Appellant contends that the standard of review to be applied to a decision of a Human Rights Commission tribunal on a question of law is correctness, citing Walsh v. Mobil Oil Canada , 2008 ABCA 268 at para. 55 , 440 A.R. 199. The Commission contends that the standard of review is reasonableness, relying on Smith v. Alliance Pipelines Ltd. , 2011 SCC 7 at para. 26 , in which Fish J., for the majority, provided the following

summary of the various categories of issues and corresponding standards of review set out in Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190: Under Dunsmuir , the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of "general law 'that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise'" ( Dunsmuir , at para. 60 citing Toronto (City) v.

C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62 ); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a "true question of jurisdiction or vires " (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal's enabling (or "home") statute or "statutes closely connected to its function, with which it will have particular familiarity" (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). [ 18 ] In Walsh , which was issued after Dunsmuir but well before Smith , Ritter J.A., for the majority, held at para. 55 that while human rights tribunals may be afforded some deference with respect to findings of fact and credibility, reviewing courts will be unconstrained in their assessment of the evidence as it relates to the applicable law, particularly where an error is found in respect of the tribunal's articulation of the law.

He did not distinguish between questions of law relating to

interpretation of the Act and questions of general law that are of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise. [ 19 ] Recently, in Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director) , 2011 ABCA 3 at para. 8 , the Alberta Court of Appeal ruled that a tribunal decision determining the meaning of the word “employer” in s. 7 of the Act must be reviewed against the correctness standard, reasoning that:

The central issue in these appeals is the meaning of the word "employer" found in the Act, which is an extricable question of law. A fullfresh standard of review analysis is not required because this Court has previously set a correctness standard of review for decisions onquestions of law by Human Rights Panels: Alberta (Human Rights and Citizenship Commission) v. Kellogg Brown & Root (Canada),2007 ABCA 426, 84 Alta. L.R. (4th) 205, 425 A.R. 35 at paras. 18, 27; Walsh v. Mobil Oil Canada, 2008 ABCA 268, 94 Alta. L.R.(4th) 209, 440 A.R. 199 at para. 55; following Canada (Attorney General) v.

Mossop, (SCC), [1993] 1 S.C.R. 554;University of British Columbia v. Berg, (SCC), [1993] 2 S.C.R. 353 at pp. 368-9; Gould v. Yukon Order of Pioneers, (SCC), [1996] 1 S.C.R. 571 at paras. 3, 46-7; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paras.55, 60. Although the Panel was called upon to interpret a term in its home statute, the key term "employer" is not defined in the statuteand is a term of general application.

The determination of who is an "employer" is a question of general importance to the legal systemand outside the specialized area of expertise of the Panel, which also justifies the correctness standard of review: Dunsmuir at para. 55. [20] Slatter J.A., who delivered the Court’s judgment in Lockerbie, justified selection of the correctness standard not only byreferring to past case law of the Court of Appeal and also by fitting the issue within the criteria outlined in Smith for application of thatstandard. [21] Some of the participants in the appeals in Lockerbie apparently argued that deference should be extended to questions of lawdecided by a human rights panel, presumably at least those in relation to

interpretation of the Act. However, Slatter J.A. responded atpara. 9 that the previous decisions of the Court of Appeal on the appropriate standard to apply are binding. [22] In the present case, the real issue on this appeal is whether the Tribunal applied the proper legal test to the facts before it. Asthat is a question of law, correctness is the appropriate standard of review to apply. B. Did the Tribunal Apply the Proper Legal Test? [23] The Appellant argues, as it did before the Tribunal, that the prohibition in s. 7(1)(

b) of the Act is directed at an employer. Itsays that Ms. Noel was never employed by it. Rather, she was employed by Dy-Kel. [24] This argument was not directly addressed in the Director’s submissions on this appeal, although there was an opportunity todo so. Instead, the submissions focussed on the issue of whether Ms. Noel was “in the course of employment.” [25] During the hearing before the Tribunal, counsel for the Director advised that the complaint was not dismissed outrightbecause the Appellant did not initially raise the issue of it having been brought under the wrong

section of the Act. She further stated: My other thinking was that this was not a service customarily available to the public. This is an accommodation provided by theemployer. It’s not a service. I can’t go up there and live there. So it’s very tied in with the employment. And I will say that I did thinkabout the matter beforehand, but I didn’t research it or write about it because I thought, well, it hasn’t been raised, and it’s truly one andthe same.

And in terms of human rights of course, we interpret matters broadly, and I would interpret this broadly and say that, yes, we could addthe name of the employer as well, but I think this is good enough in my perspective. [26] I agree with the Appellant that the prohibition in s. 7 applies to an employer in terms of its behaviour or that of its employeesor possibly agents towards an employee or prospective employee in the course of employment. In reviewing the Tribunal’s decision, it isapparent that it did not consider the question of whether Ms. Noel was employed by the Appellant.

Its failure to do so was an error oflaw. [27] In accordance with s. 37(4) of the Act, I may reverse the order of the Tribunal and make any order that the tribunal could havemade under s. 32, or I may remit the matter back to the Tribunal.

[ 28 ] In my view, there is no need to send the matter back as there is sufficient evidence on the record to determine that the Appellant was not Ms. Noel’s employer and the parties had the opportunity to address that issue. [ 29 ] In Lockerbie & Hole Industrial Inc ., the complainant was employed directly by one of Syncrude’s subcontractors, but was denied access to the Syncrude site due to a failed drug test. The Commission dismissed the complaint, but found that Syncrude was an employer of the complainant’s for purposes of the Act . The Court of Appeal disagreed. Slatter J.A., who delivered the judgment of the Court, endorsed a contextual approach to

interpretation of the term “employment” under the Act. At para. 25, he listed some of the factors that must be taken into account in making that determination, including: (

i) whether there is another more obvious employer involved; (ii) the source of the employee's remuneration, and where the financial burden falls; (iii) normal indicia of employment, such as employment agreements, collective agreements, statutory payroll deductions, and T4 slips; (iv) who directs the activities of, and controls the employee, and has the power to hire, dismiss and discipline; (

v) who has the direct benefit of, or directly utilizes the employee's services; (vi) the extent to which the employee is a part of the employer's organization, or is a part of an independent organization providing services; (vii) the perceptions of the parties as to who was the employer; (viii) whether the arrangement has deliberately been structured to avoid statutory responsibilities. [ 30 ] He considered the following additional factors also to be relevant when it is alleged there is more than one co-employer: (ix) the nexus between any co-employer and the employee, including whether there is a direct contractual relationship between the complainant and the co-employer; (

x) the independence of any alleged co-employer from the primary employer, and the relationship (if any) between the two; (xi) the nature of the arrangement between the primary employer and the co-employer, for example, whether the co-employer is merely a labour broker, compared to an independent subcontractor; (xii) the extent to which the co-employer directs the performance of the work. [ 31 ] It is obvious from a review of these criteria that the Appellant, which is the Camp owner, was not Ms. Noel’s employer or a

co-employer along with Dy-Kel. The Appellant did not pay Ms. Noel, it did not direct her activities, it did not have the power to discipline or dismiss her, it did not benefit from her services and neither party appears to have been under the impression that Ms. Noel was employed by the Appellant. It was Dy-Kel which was Ms. Noel’s employer. However, Dy-Kel was not named as a party to Ms. Noel’s complaint. The only nexus between Ms. Noel and the Appellant was one of accommodation rather than employment. However, Ms.

Noel’s complaint was not made under s. 4 of the Act . [ 32 ] Reluctantly, and despite the finding by the Tribunal of discrimination and sexual harassment in respect of the conduct Ms. Noel suffered, I must conclude that this discrimination did not fall within s. 7(1) (

b) of the Act as being by an employer “with regard to employment or any term or condition of employment.” Ms. Noel was neither directly nor indirectly employed by the Appellant. VI. Conclusion [ 33 ] The Appeal is allowed and the complaint under s. 7(1) (

b) is dismissed. [ 34 ] As the appeal is allowed, the Commission’s cross appeal of the remedy granted by the Tribunal is dismissed. [ 35 ] Unfortunately, the result of this appeal adds insult to the injury suffered by Ms. Noel. Five years have passed since the events giving rise to the complaint occurred so that the opportunity to cure the problem by adding her employer to the complaint or making her complaint under s. 4 has long since elapsed. Heard on the 2 nd day of March, 2011. Dated at the City of Edmonton, Alberta this 1 st day of April, 2011. S.J. Greckol J.C.Q.B.A. Appearances: Audrey Dean Alberta Human Rights Commission for the Appellant Kevin Mah and Norman Simons

Simons & Stephens for the Respondents