Fraser v. Bonatti Canada Construction Inc. and others, 2026 BCHRT 209
Date Issued: October 6, 2026
File: CS-008298
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Reynel Fraser
COMPLAINANT
AND:
Bonatti Canada Construction Inc. and Kiewit Bonatti TMEP Partnership and
Kiewit TMEP Corp. and Rundle Construction Inc.
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Jess Hadley
Counsel for the Complainant: Spencer Sloane
Counsel for the Respondents Bonatti Canada
Construction Inc. and Kiewit Bonatti TMEP Partnership and
Kiewit TMEP Corp.: Tom Ross, K.C.
I INTRODUCTION
[1] Reynel Fraser is a welder who was born in Trinidad and Tobago. He is Black. He alleges that the respondents discriminated against him during his employment on the Trans Mountain Expansion Project [the “Project”], based on his race, colour, ancestry, and place of origin.
[2] Mr. Fraser’s complaint is proceeding against four respondents: Bonatti Canada Construction Inc., Kiewit TMEP Corp., Kiewit Bonatti TMEP Partnership [the Partnership], and Rundle Construction Inc. Bonatti, Kiewit, and the Partnership [together, the Applicants] have filed a joint application to dismiss the complaint under s. 27(1)(c) of the Human Rights Code. They argue that only Rundle employed Mr. Fraser, and that his complaint therefore has no reasonable prospect of succeeding against the Applicants. Mr. Fraser disagrees and argues that the Applicants were all his employers for the purposes of the Code.
[3] Rundle has not applied to have the complaint dismissed against it. This means the complaint will proceed to a hearing. I must decide whether it will proceed only against Rundle, or against one or more of the Applicants too. My decision depends on whether there is at least some evidence showing a relationship of dependency and control between Mr. Fraser and Bonatti, Kiewit, and/or the Partnership.
[4] In deciding this application, I have considered all the materials that the Applicants and Mr. Fraser filed. In these reasons I refer only to what is necessary to explain my decision. I make no findings of fact.
[5] For the following reasons, I am not satisfied that Mr. Fraser’s complaint has no reasonable prospect of succeeding against Bonatti or the Partnership and I decline to dismiss the complaint against them. However, I am satisfied that the complaint has no reasonable prospect of succeeding against Kiewit, and I dismiss the complaint against Kiewit.
II BACKGROUND
[6] Mr. Fraser was employed to do welding on the Project between about July 21 and October 15, 2021. According to the Applicants, the Partnership managed construction on the Project, Kiewit and Bonatti were the partners to the Partnership, and Bonatti subcontracted certain construction functions to Rundle.
[7] Mr. Fraser alleges that he experienced a range of adverse treatment while working on the Project, all connected to his race, colour, ancestry, and place of origin. Among other things, he says he was exposed to racist iconography and comments; given less favourable hours of work and working conditions than non-Black welders; unfairly accused of poor performance; and eventually terminated.
III DECISION
A. Section 27(1)(c)
[8] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[9] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, it looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77.
[10] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They need only show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27. Another way of saying that is that the Complainant must show there is some evidence capable of supporting the conclusion they are asking the Tribunal to reach: Northwest Plastics Ltd v Bellin, 2025 BCSC 1215 at paras 33-35 and 45-50. In this case, that means there must be some evidence before me that shows Mr. Fraser’s relationship with the Applicants was one of dependency and control.
B. What “employment” means under the Code
[11] Section 13 of the Code prohibits discrimination in employment, and “employment” is interpreted expansively, to further the purposes of the Code: McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 at paras. 17, 19, and 22. The framework for deciding who is in an employment relationship under the Code is explained in McCormick:
Deciding who is in an employment relationship for purposes of the Code means, in essence, examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of a worker. In other words, the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations? The more the work life of individuals is controlled, the greater their dependency and, consequently, their economic, social, and psychological vulnerability in the workplace…
… the key is the degree of control, that is, the extent to which the worker is subject and subordinate to someone else’s decision-making over working conditions and remuneration [paras. 23 and 28, emphasis added]
[12] In assessing control and dependency under s. 13 the Tribunal can take into account such factors as whether the respondent gained some benefit from the complainant; whether they exercised control over the complainant’s wages, conditions of employment, or the nature of the work performed; whether they were responsible for remunerating the complainant; and whether they are able to remedy discrimination: McCormick at para. 24, citing Crane v. BC (Ministry of Health Services), 2005 BCHRT 361.
[13] A person does not necessarily have to be an employer to be named as a respondent in a s. 13 complaint: British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62. However, Mr. Fraser is not arguing that any of the Applicants, despite not being his employer, had a sufficient connection to his employment to bring them within the scope of s. 13. Unlike in Schrenk, in this application Mr. Fraser argues that all of the Applicants were his employers under s. 13. Mr. Fraser says, and I agree, that the dismissal application therefore raises a single question: whether there is no reasonable prospect he can prove the Applicants employed him within the meaning of s. 13.
C. The parties’ positions on whether there was an employment relationship
[14] The Applicants argue that Rundle alone employed Mr. Fraser. They provided affidavit evidence that Rundle paid Mr. Fraser; that his terms and conditions of employment were governed by a Rundle collective agreement; and that the form used in his termination was a “Rundle document.” They also argued that the Applicants could not have been in an employment relationship with Mr. Fraser, because the Labour Relations Board had not declared any of them to be common employers with Rundle.
[15] In response, Mr. Fraser argues that he was employed by the Applicants under s. 13. He provided affidavit evidence saying, among other things, that he was told to report to Bonatti as Bonatti was hiring him; that Bonatti was responsible for approving his pay; and that supervisors at Bonatti, Kiewit, and the Partnership all directed his work on the Project.
D. Applying s. 27(1)(c)
Bonatti
[16] The Applicants have not satisfied me that Mr. Fraser has no reasonable prospect of proving an employment relationship with Bonatti. This is because the evidence before me raises a reasonable prospect that Mr. Fraser can show that Bonatti played a role in assessing his performance, recommending his termination, and terminating his employment.
[17] Before I turn to that evidence, I address the Applicants’ argument that there can only be one employer for the purposes of s. 13 and that Mr. Fraser’s sole employer was Rundle. It is well-established that respondents who would not be considered employers in other legal contexts may be proper respondents to a complaint brought under s. 13: McCormick at para. 22; Schrenk at paras. 37-38. Here, the evidence suggests Bonatti had some control over Mr. Fraser’s work, and that he was dependent on Bonatti for his continued employment on the Project. In these circumstances, whether Mr. Fraser was part of Rundle bargaining unit, or whether the Labour Relations Board had declared the Applicants to be common employers, is not determinative or, arguably, even relevant.
[18] The most important piece of evidence on this issue is the discipline form that was used in Mr. Fraser’s termination, which the Applicants put into evidence. This form states near the top that Mr. Fraser’s performance was “unsatisfactory as per the feedback from the Line Manager.” The form then indicates he has been terminated, and it is signed at the bottom by three people who appear to be signing on behalf of the employer: a Line Manager, a Project Manager, and someone from Human Resources. The form does not indicate who these people were representing when signing the form, and the Applicants are silent on this, saying only that the form was a “Rundle document.” I am satisfied that there is evidence that these people represented Bonatti.
[19] Mr. Fraser submitted emails showing that all three signatories on the discipline form had Bonatti email addresses. This includes the Line Manager who, according to the form, assessed Mr. Fraser’s performance as unsatisfactory. The Applicants did not provide any explanation for why three people who appear to have worked for Bonatti would have been assessing Mr. Fraser’s performance and signing off on his termination if Bonatti did not exercise some control over his employment.
[20] Although the Applicants argue that the form used in Mr. Fraser’s termination was Rundle’s, it is not clear from the face of the document that this is so, since the form bears both Rundle’s logo and Bonatti’s. Furthermore, even if the form were only Rundle’s, I would not be persuaded the complaint should be dismissed, given that the Line Manager, Project Manager and Human Resources person who signed the form appear to have worked for Bonatti.
[21] I am thus satisfied there is some evidence before me capable of supporting a conclusion that Bonatti exercised control over Mr. Fraser’s work on the Project, by assessing his performance, recommending and effecting his termination, and that he was in a corresponding relationship of dependency with Bonatti. I do not accept Mr. Fraser has no reasonable prospect of proving an employment relationship with Bonatti under s. 13.
[22] I dismiss the application as it relates to Bonatti.
The Partnership
[23] I also decline to dismiss the complaint against the Partnership. The evidence before me does not satisfy me Mr. Fraser has no reasonable prospect of showing that he had an employment relationship with the Partnership under s. 13, considering the aspects of control and dependency.
[24] As noted above, the Applicants argue that Rundle alone exercised control over Mr. Fraser’s work on the Project. However, Mr. Fraser’s affidavit states that he took direction from Partnership supervisors, and he supported this with a set of e-mails in which people with Partnership email signature blocks gave him directions on matters such as onboarding, training, drug testing, and equipment certification. Although the Applicants argue that the Partnership had nothing to do with directing Mr. Fraser’s work, they also say the Partnership had construction management responsibilities on the Project. The email evidence suggests that Partnership staff exercised some of these responsibilities by directing aspects of Mr. Fraser’s onboarding, training, drug testing, and equipment certification.
[25] Although the evidence suggesting Mr. Fraser and the Partnership had a potential employment relationship with the Partnership is not extensive, I am not satisfied that he has no reasonable prospect of proving a relationship of control and dependency under s. 13. The threshold to advance a complaint to a hearing is low, and the Applicants have not convinced me Mr. Fraser’s complaint against the Partnership fails to rise above the realm of conjecture.
Kiewit
[26] The Applicants have, however, satisfied me that Mr. Fraser has no reasonable prospect of proving that he had an employment relationship with Kiewit under s. 13, and that because of this, his complaint against Kiewit should be dismissed under s. 27(1)(c).
[27] There is no evidence before me that suggest Kiewit had any degree of control over Mr. Fraser’s work, or that he was in any way dependent on Kiewit. Although Mr. Fraser’s affidavit stated that Kiewit participated in directing his work on the Project, the one email in evidence from a Kiewit employee does not show Kiewit directing Mr. Fraser’s work; it only shows the employee asking someone from Bonatti whether Mr. Fraser has completed some paperwork. The Applicants’ affidavit evidence states that Kiewit had nothing to do with directing Mr. Fraser’s work, or paying him, or terminating his employment, and unlike with Bonatti and the Partnership, there is no other evidence before me to contradict this. Based on the material before me I see no reasonable prospect Mr. Fraser will prove an employment relationship under s. 13 with Kiewit.
[28] I therefore dismiss the complaint against Kiewit.
IV CONCLUSION
[29] I dismiss the complaint against Kiewit, but not against Bonatti or the Partnership.
Jess Hadley
Tribunal Member
Human Rights Tribunal