In the case of Prieur v Alberta Health Services, 2026 AHRC 50 (Ringseis), the Alberta Human Rights Tribunal (the Tribunal) dismissed a complaint (the Complaint) filed by a cardiac surgeon (the Complainant) against Alberta Health Services (the Respondent) on the grounds that it was not her employer.
In most human rights cases in the employment context, there is relatively little dispute as to whether the respondent is the complainant’s employer. This case is interesting because it deals with a unusual and highly complicated factual and legal scenario, where the identity of the employer was not immediately obvious and indeed, where there may be no employer at all.
Facts
The following were the facts found by the Tribunal:
- The Complainant, Dr. Teresa Prieur, is a cardiac surgeon with privileges to provide clinical services at the Foothills Medical Centre (Foothills).
- The Respondent, Alberta Health Services (AHS), is an entity constituted by legislation and is responsible for administering and delivering health services in Alberta. The Respondent oversees hospitals and other medical services provided by the government of Alberta, including Foothills.
- The Complaint alleged discrimination on the basis of age and gender, contrary to Section 7 of the Alberta Human Rights Act (the Act). In essence, the Complaint alleged that the Complainant was subjected to unwarranted scrutiny and criticism of her competence because of her gender and age.
- The Director of the Alberta Human Rights Commission initially dismissed the Complaint following a Section 26 application by the Respondent. This was overturned.
- However, before proceeding further the Tribunal considered a preliminary matter of whether the Complainant was an employee of the Respondent. This matter forms the basis of this case.
- The Respondent stated that it employed large numbers of nurses, administrators, and support staff, but took the position that doctors at Foothills are contractors, not employees, and thus that the Tribunal did not have jurisdiction to deal with the Complaint.
- While the Respondent did have in place rules, procedures, and policies governing the use of its facilities and interactions between doctors and its employees, the primary set of rules governing how the Complainant was to carry out her work as a surgeon were embodied in the Medical Staff Bylaws (the Bylaws), which were created pursuant to the Hospitals Act.
- The Bylaws were developed jointly by the Respondent and members of its Medical Staff (of which the Complainant was a member), and the while the Respondent had the ability to propose amendments to such bylaws, such amendments had to be approved by a 2/3 vote of the Medical Staff and approved by the Minister of Health. In other words, the Respondent lacked the authority to unilaterally alter the Bylaws.
- The complainant’s practice was also overseen by the College of Physicians and Surgeons of Alberta (the College), the governing body responsible for regulating the practice of medicine. In the event of a conflict, the directions of the College supersede the Bylaws.
- While most doctors in Alberta are compensated on a fee-for-service model, groups of doctors can apply for what’s called an Alternative Relation Plan (ARP), which allows physicians to receive their pay in regular instalments.
- Together with a group of fellow physicians, the Complainant set up an ARP known as the Cardiac ARP. The details of the Cardiac ARP are as follows:
- While the Respondent provided the operational infrastructure for the services (that is, facilities, support staff, etc.) provided under the Cardiac ARP, the physicians agreed between themselves how the money was to be allocated, without any input from the Respondent;
- The Cardiac ARP receives its funding from the Ministry of Health (Alberta Health). Alberta Health determined the amount which the Cardiac ARP would receive, without any involvement of the Respondent; and
- Prior to 2019, the Respondent had an administrative role in distributing funds. After 2019, that role was taken over by the organization described below.
- In October of 2019, the Complainant and other Calgary-based cardiac surgeons formed the Calgary Cardiac Surgeons Governance Association (CCSGA), with the intention to administer the Cardiac ARP themselves. Among other things, the CCSGA administered the payment of funds (a role held by the Respondent until 2019), and determined the payment schedule authorized for the work performed by the cardiac surgeon members.
- The Complainant also testified that she operated through a professional corporation called the Teresa M Kieser Professional Corporation (the Professional Corporation).
- The Professional Corporation was a signatory to the CCSGA formation agreement, and to a letter agreement with the Respondent (the Letter Agreement).
- The Letter Agreement held that the Respondent would provide one of its own employees to act as an administrative assistant to the Complainant, and that the Complainant would be responsible for reimbursing a portion of this employee’s wages.
Analysis / Conclusion
The Tribunal began its analysis by noting the high degree of complexity of the environment in which the Complainant performed her work:
[8] The environment in which the complainant performs her work is not simple. There is government and regulatory oversight, there are more than one set of rules and more than one body enforcing rules…
Turning to the test for an employment relationship, the Tribunal held that determining whether an employment relationship exists for the purposes of the Act requires examining two factors:
- the degree of control exercised by the alleged employer over the working conditions and remuneration; and
- the extent to which the alleged employee has an influential say in the working conditions and remuneration.
The Tribunal noted that a contextual approach must be applied to the analysis, including by considering the following factors enunciated in the Alberta Court of Appeal case of Lockerbie & Hole Industrial Inc. v Alberta (Human Rights and Citizenship Commission, Director), 2011 ABCA 3:
- whether there is a more obvious employer involved;
- the source of the employee’s remuneration, and where the financial burden falls;
- normal indicia of employment, such as employment agreements, collective agreements, statutory payroll deductions and T4 slips;
- who directs the activities of, and controls the employee, and has the power to hire, dismiss and discipline;
- who has the direct benefit of, or directly utilizes the employee’s services;
- the extent to which the employee is a part of the employer’s organization, or is a part of an independent organization providing services;
- the perceptions of the parties as to who was the employer;
- whether the arrangement has deliberately been structured to avoid statutory responsibilities.
Whether there is another, more obvious employer involved
In considering this question, the Tribunal noted the significant number of entities involved in regulating the Complainant’s work:
[36] As described above, there is a complex myriad of organizations, groups and associations involved in the complainant’s work life. Each of these entities controlled some of the aspects of the complainant’s appointment, although none were an obvious employer. The CCSGA requested funds from Alberta Health, who had unilateral power to direct how much the CCSGA would receive under the terms of the ARP. The CCSGA determined how to allocate the funds, although they had used the respondent for fund allocation in the past. The workplace rules for the hospital are created and enforced by the Respondent. The rules for how the complainant and other cardiac surgeons do their surgery work, however, are created by the College and also the members of the CCSGA.
[37] Many aspects of the complainant’s working conditions were therefore controlled by this complex mix of government, public, private and collective entities. Clinical decision making was controlled by the patient and regulated by the College; establishment of services and compensation was controlled by Alberta Health in consultation with the CCSGA.
The Complainant and Respondent appeared to be in agreement that there was no other obvious employer emerging from this complex web. However, the Tribunal rejected the Complainant’s argument that the lack of any other obvious employers suggested that the Respondent was the obvious employer.
With regard to the Professional Corporation, the Tribunal noted as follows:
[41] The respondent also noted […] that the complainant performed her duties as a professional corporation and not as an individual. On the face of it, the professional corporation is the most obvious employer in law, although the practical reality is that a professional corporation and the professional providing services through that professional organization are often difficult to distinguish. This does not mean that any of the entities who contracted with the complainant or her professional corporation were obvious employers.
Ultimately, the Tribunal concluded that there appeared to be no obvious employer of the Complainant.
The source of the employee’s remuneration, and where the financial burden falls
The Tribunal concluded that the Respondent had no financial burden with respect to the Complainant’s remuneration, as the funding for her and all other cardiac surgeons was provided by Alberta Health, and the respondent had no ability to determine the CCSGA’s allotment of funds or to provide additional payments to the Complainant.
Normal indicia of employment
In considering this factor, the Tribunal noted among other things that there was no evidence to suggest that the Complainant has ever received a paystub or any sort of tax forms from the Respondent, no evidence of any written employment agreement with the Respondent, and indeed no evidence of any contract with the Respondent other than the Letter Agreement.
Based on this information, the Tribunal ultimately concluded that the relationship was, in substance, a contractor relationship, albeit a complex and unusual one:
[52] The complainant argues that the substance of the relationship was that of an employment relationship. I disagree. The substance of the relationship between the respondent and the complainant appears to be that of a contractor relationship. Although the contractor relationship was very complex, and unusual, there was no indicia of an employment relationship.
Who directs the activities of, and controls the employee, and has the power to hire, dismiss, and discipline
The Tribunal noted that although the Respondent had some control over the Complainant’s workplace, including by establishing rules, procedures, and policies governing the use of its facilities and the interactions between doctors and the Respondent’s employees, it did not have the power to hire, fire or discipline that an employer would ordinarily have.
The Tribunal also noted that, while the Respondent granted the Complainant an appointment to its Medical Staff, all disciplinary action regarding Medical Staff were governed by the Bylaws, which the Respondent had no authority to unilaterally change or override.
Turning to the question of dependency/vulnerability, the Tribunal noted that the Respondent had the ability to suspend the Complainant’s hospital privileges and refer her to discipline from the College, which left the Complainant vulnerable and reliant on the Respondent.
Interestingly, the Tribunal noted that this vulnerability and reliance was not enough to establish an employment relationship, as the Complainant could have worked in another location, such as a hospital in Edmonton.
Turning to the issue of the degree to which the Respondent’s employees exercised oversight over the Respondent, the Tribunal accepted that while certain of the Respondent’s employees exercised oversight over the Complainant’s work (such as the ability to review and suggest changes to scheduling), some degree of oversight must exist to keep a hospital running effectively:
[67] Beneath the Zone Director on the respondent’s organizational chart are the Section Chiefs, including the Section Chief in cardiac surgery. The evidence supports that the Section Chief played an important oversight role. Although the Section Chief did not have the power to hire or fire the complainant, he could review the schedule and contact colleagues about potential changes to scheduling. It is hard to imagine how the Foothills Medical Centre could operate effectively, however, without some form of oversight over the collective of doctors and surgeons. An independent contractor has the ability to control how it does work, but that control must be exercised within the boundaries set by the organization with which it contracts. The respondent was involved in the setting and monitoring of some of the rules and bylaws, but so was the CCSGA, the Cardiac ARP and the complainant herself, through her professional corporation.
Perhaps most importantly to its decision, the Tribunal found that the Respondent exercised no control over the most critical component of the Complainant’s job – the provision of surgery. In this regard, the plaintiff had control over how she carried out her surgical duties.
Who has the direct benefit of, or directly utilizes, the employee’s services
In considering this issue, the Tribunal readily concluded that it was the Complainant’s patients, not the Respondent, who benefitted from her services.
The Tribunal noted that the Plaintiff did have some degree of economic dependency on the Respondent, as she could not do her work outside the hospital setting which the Respondent provided. However, the tribunal agreed with the respondent that this economic dependence is not critical for defining employment under the Act.
The extent to which the employee is part of the employer’s organization, or is part of an independent organization providing services
While the Tribunal accepted many of the Complainant’s arguments regarding her degree of integration into the Respondent’s organization (such as the fact that she had an email address provided by the Respondent, relied on its support staff, and was required to follow its policies and procedures), it ruled that while these factors can be markers of an employment relationship, in the context of the symbiotic relationship between the Complainant and the Respondent, these factors are not determinative.
The perceptions of the parties as to who was the employer
The Complainant testified that she believed that the Respondent was her employer. However, the Tribunal concluded that this belief was not supported by the evidence, stating that the Complainant did not appear to fully understand the nature of the relationship between her professional corporation, herself, the Respondent, Alberta Health, other cardiac surgeons, and the Cardiac ARP.
Whether the arrangement has deliberately been structured to avoid statutory responsibilities
The Tribunal found that there was no evidence to suggest that the arrangement between the parties was structured to avoid any statutory responsibilities.
Conclusion
Ultimately, the Tribunal concluded that the Respondent was not the Complainant’s employer.
My Take
This is an interesting case for me, for a number of reasons. While the Tribunal did not expressly rule on whether the other entities in this matter were the employers of the Complainant, it did state that there appeared to be no obvious employer, raising a question of what, if any, entity she could seek redress against for alleged discrimination.
On one hand, it cannot be denied that the Complainant worked in an unusual and highly complicated regime involving the intersecting jurisdiction of many different entities, rules, and regulatory schemes. It was also clear that the Respondent lacked many of the hallmarks of a traditional employer, such as control over the Complainant’s compensation or the manner in which she carried out her work, or the ability to hire, fire, or discipline her. In particular, the fact that the Respondent had no authority to determine how the Complainant carried out her surgical duties appeared to play a major role in its finding.
On the other hand, it is a trite proposition that human rights legislation is to be interpreted in a broad, purposive manner, to ensure that its remedial function can be carried out effectively.
It will be interesting to see how this decision is interpreted in the future. Among other things, I was interested by the Tribunal’s finding that the Complainant’s economic dependence on the Respondent was insufficient to create an employment relationship. I am curious as to whether the law will develop to place greater emphasis on this factor in future cases.
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