The B.C. Human Rights Tribunal has dismissed a discrimination complaint by former Victoria-based sales rep Rick Allenberg, ruling that a real estate listing contract does not create an employment relationship within the meaning of the B.C. Human Rights Code.
Allenberg, who is white and from South Africa, initiated the complaint alleging his client, Dr. Roger Johnson, who self-identifies as black, discriminated against him in his employment when Johnson broke their listing contract because of Allenberg’s race and country of origin.
After a lengthy analysis of what constitutes an employment relationship under the code, which included reviewing a recent Supreme Court of Canada decision, tribunal member Norman Trerise concluded that even when interpreted broadly, the term employment still relies on two main questions: how much control is exercised by the employer over working conditions and remuneration, and how dependant the worker is on that employer.
Independent contractors, he noted, “have been found to be employees for the purposes of human rights legislation, even though they would not be considered employees in other legal contexts.”
However, in this particular case, Trerise found that there was nothing in the content of the listing agreement that limited Allenberg’s ability to perform similar functions for other clientele, nor was Allenberg commercially dependent on this one listing agreement for his financial well-being. Trerise also found that, subject to the rules established by the B.C. Real Estate Association and the Victoria Real Estate Board, Allenberg was free to determine how he would market and secure a buyer for the property.
Given this, Trerise concluded that it would be unlikely “to persuade a tribunal member that this real estate contract created an employment relationship within the meaning of the code” and dismissed Allenberg’s complaint – despite agreeing that the facts supported Allenberg’s complaint of racism based on origin and colour of skin, and that the racism was clearly articulated in emails flowing from Johnson to Allenberg.
“The emails are vile, ignorant and repulsive, and there is little question that, were this an employment relationship, Dr. Johnson would be unsuccessful in defending the complaint,” wrote Trerise in his decision.
The decision has left Allenberg angry and questioning the legal system.
“At the end of all of this, the definition of employment is more important to the people at the B.C. Human Rights Tribunal than the vile acts of discrimination,” says Allenberg, who has since retired. “Why tell me I was discriminated against and then tell me that I am not part of the human in human rights?”
Robyn Durling, the communications director with the B.C. Human Rights Clinic, says he, too, was disturbed by Allenberg’s allegations, but says that the code establishes areas and grounds of discrimination. In this particular case, the tribunal member found that there was no relationship that brought the complaint within the established parameters of the code.
“So, while the conduct may have been offensive, the tribunal’s decision just means that (Allenberg) can’t get remedy under the code,” says Durling. “He could presumably sue for breach of contract and if the conduct reached certain threshold levels, possibly ask for laying of criminal charges or sue for defamation.”
Tribunal records show that Johnson did file a “with prejudice” settlement offer, but Allenberg hasn’t decided how he will proceed.
To view the decision, click here [PDF].
