In MacKinnon v. Quinte Health[MacKinnon], the Human Rights Tribunal of Ontario (the “HRTO” or the “Tribunal”) reinforced an important jurisdictional issue for employers: not every work-related relationship qualifies as “employment” under the Ontario Human Rights Code (the “Code”).

In MacKinnon, the Tribunal dismissed an application after finding that the applicant, a member of the board of directors, was not in an employment relationship with the organizational respondent, a public hospital, or the individual respondents. The HRTO determined that it lacked jurisdiction to assess the discrimination allegations on their merits, because the Code applies only when a protected “social area”, such as employment, is engaged.

Background

The applicant served as an unpaid, community-based volunteer board chair of the hospital’s board of directors from June 2020 until approximately May 2021. The Board Chair’s tenure ended following a disagreement with other board members. He then subsequently filed an application with the HRTO alleging that the hospital, its CEO, and the board’s Vice Chair discriminated against him. The allegations were based on family status, marital status, and his association with individuals identified by protected grounds under the Code.

The hospital, CEO, and Vice Chair challenged the Tribunal’s jurisdiction to hear the matter at a summary hearing. Specifically, they argued that the Board Chair, as a volunteer board member, was not in an employment relationship with the hospital, CEO, or the Vice Chair, and therefore the Code’s employment protections did not apply.

The HRTO was then faced with deciding whether a volunteer serving as a board chair fell within the Code’s definition of “employment”.

The HRTO’s Analysis

The Tribunal ultimately found that the Board Chair was not in an employment relationship with the hospital, CEO, or Vice Chair and could therefore not be considered an “employee” such that he would be entitled to protection under the social area of “employment” pursuant to the Code. In reaching this decision, the Tribunal relied on the two-part “control and dependency” test articulated by the Supreme Court of Canada in McCormick v. Fasken Martineau DuMoulin LLP:

1. Control: Who determines working conditions and remuneration?
2. Dependency: To what extent is the worker reliant on the organization and subject to its direction?

The greater the control and dependency between the parties, the more likely there is an employment relationship. The HRTO emphasized that these factors must be assessed based on the essential character of the relationship and not merely titles or formal roles.

In this case, the HRTO found that the defining features of the board chair position did not support an employment relationship between the Chair and the hospital. In particular, the Tribunal found that the board members:

• acted as fiduciaries, who acted in the best interests of the hospital and the public;
• provided independent oversight and strategic governance;
• were not subordinate to management; and
• did not participate in day-to-day operational decision-making.

The unpaid nature of the role also reinforced the lack of dependency, although the Tribunal’s reasoning did not hinge solely on this factor. Additionally, the HRTO did not find an employment relationship existed between the Board Chair and the CEO. Notably, the Board Chair was responsible for evaluating the CEO’s performance, which further underscored that the Chair had oversight over the CEO and was not subordinate to them. Similarly, with respect to the relationship between the Chair and Vice Chair, the HRTO found that the nature of the relationship did not constitute employment either. The HRTO highlighted that board members typically work in independence of each other and, if anything, the Tribunal noted that the Board Chair role was likely more senior than the Vice Chair role.

Taken together, these characteristics led the HRTO to conclude that the Board Chair did not exhibit the control and dependency necessary to establish an employment relationship under the Code.

Because the HRTO’s jurisdiction depends on a claim engaging one of the Code’s protected social areas, such as employment, services, or housing, and no such social area was engaged, the HRTO was unable to adjudicate the dispute. As a result, the HRTO dismissed the application as being outside its jurisdiction and did not consider or make any findings on the merits of the discrimination allegations.

This decision provides helpful clarity for organizations and employers, particularly in the healthcare and non-profit sectors that rely on volunteer governance structures. It confirms that seniority, influence, or responsibility alone do not transform a governance role into an employment relationship. At the same time, employers should not assume that all non-traditional work arrangements fall outside human rights protections. The analysis remains highly fact-specific, and different conclusions may arise where there is greater control, economic dependency, or integration into operational roles.

Key Takeaways

• Not all leadership roles are “employment”: Volunteer board members, even those in prominent positions like board chair, will generally fall outside the Code’s employment protections where they exercise independent governance rather than operate under organizational control.
• Control and dependency remain the governing test: Titles and responsibilities are less important than whether the organization controls working conditions and whether the individual is economically or operationally dependent on it.
• Jurisdiction is a threshold barrier: If a claim does not fall within a protected social area under the Code, the HRTO cannot hear it, regardless of the seriousness of the allegations. However, some workplace policies may be broader in application that the Code and employer obligations to investigate allegations of discrimination or harassment stemming from workplace policies should not be overlooked.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.