March 8, 2018

Many construction companies are moving into the British Columbia market. Those that do so on “autopilot” may create serious issues for your organization and your client.

A recent BC Human Rights Tribunal’s decision again highlights the difference in BC Human Rights Code versus other jurisdictions such as in Alberta, which confines the Act to discrimination arising from the employment relationship…to employers.

For instance, in Alberta it is clear that employment related human rights obligations are confined to employers. Example: Syncrude was found not to be a employer for the purpose of administering the act when an existing employee of Lockerbie & Hole Industrial was barred from employment on a Syncrude site due to a Syncrude-imposed site access test failed by the impacted Lockerbie & Hole Industrial employee. (Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3)

In British Columbia, owner/client site access rules, and workforce administration activated pursuant to private property rights, or in the case of construction management entities, prime contractor responsibility; can attract employer-like obligations on the part of owners and construction management entities in BC. Most notably, owner/clients and non-employing construction management entities can be readily named as a party in human rights litigation.

Failing to properly address and structure work rules in light of the above can result in your organization essentially giving a “hospital pass” to your client.

“Hospital pass” is a term originally used in football codes to describe a pass that subjects the recipient to heavy contact, usually unavoidable, from an opposing player — the expression implying that the recipient of the pass could end up in hospital…

A hospital pass is usually made in an attempt to avoid being tackled. The pass is often made under pressure and without considering the situation of the receiver, who is often stationary and thus presents an easy target. Alternatively, the passer is under little pressure but misreads the play and passes to a player who is already heavily marked and has little time to avoid contact.

Report inspired by an October 19, 2017 by Kate Byers of Cassels Brock, “Oh Snap!: Franchisors May be Liable for Human Rights Complaints Initiated by Employees of Franchisees In British Columbia” and based on d Bernadette Reid v.  X and A Fitness Club Inc. dba  Snap Fitness Cloverdale and Snap Fitness of Canada Inc. and Snap Fitness Inc. and Tina An

Care needs to be taken in structuring site/project obligations and work rules when executing work in BC. Employers need to adopt & establish the foregoing as conditions of employment and administer same as conditions of employment. Relying on owners or construction management entities to administer project rules is neither available nor advisable for employers working on major construction work in the province of BC, especially when such rules may have human rights implications. Accordingly, work rules and contract risk profiles need to be addressed in consideration of the above.

Decision

Snap Fitness Inc. is the franchisor of chain (and brand) of  independently owned and operated fitness clubs. This case pertains to a human rights complaint naming franchisor Snap Fitness Inc. arising from an employment relationship from one of its independently owned and operated franchisee fitness clubs in the province of BC.

The complainant, prior to  working for X and A Fitness Club Inc. (operating as “Snap Fitness Coverdale”) was involved in a motor vehicle accident which left her with physical limitations impacting her ability to perform her duties at work.

X and A Fitness Club Inc. put forward a defense that the complainant did not disclose physical restrictions prior to the termination of the employment relationship.

Snap Fitness Inc. put forward a defense that it was not a proper party to the complaint as it was neither the employer of the complainant nor operator of the fitness club in question. To which the Tribunal responded:

The position take by Snap Fitness that it is improperly named in the complaint because it was never Ms. Reid’s employer is misconceived. It is clear on the reading of s. 13 that a respondent does not need to employ a complainant in order to be in violation of the Code. The Code provides that a “person”, not necessarily and “employer”, must not discriminate regarding employment or a term or condition of employment. Typically, it will be an employer that runs afoul of s.13, however, any person whose actions or omissions discriminate against another person regarding employment or terms or conditions of employment or terms or conditions of employment will be in violation of s. 13 of the Code.
The Code, therefore, does not require that Snap Fitness be Ms. Reid’s employer in order to be found to have violated s. 13 of the Code. It is settled law that discrimination can be established in the absence of an employment relationship because the subject of the complaint has the ability to interfere with or influence the employment relationship: Schrenk v. British Columbia (Human Rights Tribunal), 2016 BCCA 146 at para 19. The Tribunal has held that liability may be found where a franchisor has the ability to interfere with and influence that franchisee’s employment relationship with its employees and fails to do so: Chien and other v. Tim Hortons and others (No.2), 2015 BCHRT 169 at paras. 73-74; Charthaigh v. Blenz The Canadian Coffee Company, 2012 BCHRT 264 at paras, 19-20.

Workforce Delivery can offer an audit together with solutions to navigate the implications of the above for owners, construction management entities, or employers for those that require assistance. In any event, the above is worth assessing with either internal or external resources in advance of executing work in BC, particularly for those contractors traditionally operating in the province of Alberta.

Yours truly,

Sam Kemble

www.workforcedelivery.com

(780) 886-1679