Contractors now considered 'regularly employed': Ontario Court of Appeal
Once again, a court decision has demonstrated the starting point for a legal argument often determines the outcome.
In Ontario (Ministry of Labour) v. United Independent Operators Limited, the Ontario Court of Appeal concluded independent truck drivers are “regularly employed” under the Occupational Health and Safety Act (OHSA) for the purposes of determining a joint health and safety committee is required at a workplace at which 20 or more workers are regularly employed.
The outcome, while not surprising in the context of the legislation and its definitions of “employer” and “worker,” will require some employers to reassess their obligation to establish a joint health and safety committee in Ontario.
United Independent Operators Limited (UIOL) operates as a broker from its sole business premises in Woodbridge, Ont., which consists of a reception area, a lunch room and seven offices.
Customers contract with UIOL to transport sand, gravel and crushed stone from quarries and construction sites to where UIOL’s customers need it.
To do this, UIOL engages independent truck drivers who own and operate their own trucks. Although the truck drivers were readily identifiable as UIOL truck drivers, they were independent contractors and not common law employees of UIOL.
In July 2004, a UIOL truck driver was critically injured when he was crushed between his truck and the truck of another UIOL truck driver at the workplace of an UIOL customer.
During the investigation, the Ministry of Labour determined UIOL breached the OHSA by failing to establish and maintain a joint health and safety committee and UIOL was subsequently charged with that offence under the legislation.
At the time the offence was alleged to have occurred, UIOL had 11 employees working at its office. However, the number of truck drivers working for UIOL ranged from 30 to 140 depending upon the time of the year.
The trial judge, relying heavily upon a 2000 decision of the Ontario Labour Relations Board in 526093 Ontario Inc. (c.o.b. Taxi Taxi), concluded the independent truck drivers were not “regularly employed” because they did not have a traditional common law employment relationship with UIOL, and, therefore, he dismissed the charge.
On appeal to the Ontario Court of Justice, the charge was likewise dismissed on the same basis. Both of the lower courts focused their analysis on whether the truck drivers were in a traditional common law employment relationship with UIOL.
The Court of Appeal’s decision
The Court of Appeal took a different approach and focused on the statutory definitions of “employer” and “worker” found in the OHSA, which provide in part as follows: “employer” means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services;” “worker” means a person who performs work or supplies services for monetary compensation.”
There was no dispute the independent truck drivers were “workers” under the OHSA, since they supplied services to UIOL for compensation, nor that UIOL was the “employer” of those independent truck drivers under the legislation, since the definition of employer includes a subcontractor who supplies services to the employer.
The issue was whether the independent truck drivers were “regularly employed” within the meaning of the OHSA, which states a joint health and safety committee is required at a workplace at which 20 or more workers are regularly employed.
The Court of Appeal reasoned that by “excluding the truck drivers due to the nature of their employment relationship, the words ‘regularly employed’ were interpreted in a narrow fashion, one that is inconsistent with the objectives, purpose and legislative scheme of the OHSA.”
Although the word “employed” is not defined under the OHSA, the Court of Appeal turned to the definition of “employer” and concluded that, since UIOL is the employer of the truck drivers under the legislation, then “it stands to reason that the truck drivers are employed by it.”
Having reached this conclusion, the Court of Appeal turned to the question of whether the truck drivers were “regularly” employed by UIOL. Relying on the dictionary definition of “regular” as normal or customary, the Court of Appeal was able to conclude that, since it was normal or customary for UIOL to have between 30 and 140 truck drivers working for it, they were regularly employed by UIOL.
The Court of Appeal then proceeded to find that the Ontario Labour Relations Board 2000 decision in Taxi Taxi was wrongly decided, because its interpretation of “regularly employed” was inconsistent with the definitions of “worker” and “employer” under the OHSA, both of which definitions include independent contractors.
The Court of Appeal explained the narrow interpretation of “regularly employed” given by the courts below had the effect of denying the benefits of a joint health and safety committee to all workers except those in a traditional common law employment relationship and this would be inconsistent with the objectives, purpose and legislative scheme found within the OHSA.
Although the Court of Appeal found UIOL was required to establish and maintain a joint health and safety committee under the OHSA — something which UIOL had in fact done following the accident — it concluded it was not in the public interest to order a second trial and, therefore, no conviction would be registered against UIOL with respect to the charge that it did not have a joint health and safety committee in place at the time of the accident.
Once again, this decision emphasizes the unique nature of the OHSA as protective legislation designed to promote public health and safety that is to be interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme.
Employers who do not currently have a joint health and safety committee should reassess whether they are properly including in their assessment all workers, including those of independent contractors, who are “regularly employed” at their workplaces.
Likewise, employers who currently have a joint health and safety committee should be reminded they have responsibilities, not only for their own employees, but for the employees of those contractors and subcontractors who are working at their workplace.
Scott G. Thompson is partner at Hicks Morley Hamilton Stewart Storie LLP in Toronto. He can be reached at
[email protected] or (416) 864-7283.
In Ontario (Ministry of Labour) v. United Independent Operators Limited, the Ontario Court of Appeal concluded independent truck drivers are “regularly employed” under the Occupational Health and Safety Act (OHSA) for the purposes of determining a joint health and safety committee is required at a workplace at which 20 or more workers are regularly employed.
The outcome, while not surprising in the context of the legislation and its definitions of “employer” and “worker,” will require some employers to reassess their obligation to establish a joint health and safety committee in Ontario.
United Independent Operators Limited (UIOL) operates as a broker from its sole business premises in Woodbridge, Ont., which consists of a reception area, a lunch room and seven offices.
Customers contract with UIOL to transport sand, gravel and crushed stone from quarries and construction sites to where UIOL’s customers need it.
To do this, UIOL engages independent truck drivers who own and operate their own trucks. Although the truck drivers were readily identifiable as UIOL truck drivers, they were independent contractors and not common law employees of UIOL.
In July 2004, a UIOL truck driver was critically injured when he was crushed between his truck and the truck of another UIOL truck driver at the workplace of an UIOL customer.
During the investigation, the Ministry of Labour determined UIOL breached the OHSA by failing to establish and maintain a joint health and safety committee and UIOL was subsequently charged with that offence under the legislation.
At the time the offence was alleged to have occurred, UIOL had 11 employees working at its office. However, the number of truck drivers working for UIOL ranged from 30 to 140 depending upon the time of the year.
The trial judge, relying heavily upon a 2000 decision of the Ontario Labour Relations Board in 526093 Ontario Inc. (c.o.b. Taxi Taxi), concluded the independent truck drivers were not “regularly employed” because they did not have a traditional common law employment relationship with UIOL, and, therefore, he dismissed the charge.
On appeal to the Ontario Court of Justice, the charge was likewise dismissed on the same basis. Both of the lower courts focused their analysis on whether the truck drivers were in a traditional common law employment relationship with UIOL.
The Court of Appeal’s decision
The Court of Appeal took a different approach and focused on the statutory definitions of “employer” and “worker” found in the OHSA, which provide in part as follows: “employer” means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services;” “worker” means a person who performs work or supplies services for monetary compensation.”
There was no dispute the independent truck drivers were “workers” under the OHSA, since they supplied services to UIOL for compensation, nor that UIOL was the “employer” of those independent truck drivers under the legislation, since the definition of employer includes a subcontractor who supplies services to the employer.
The issue was whether the independent truck drivers were “regularly employed” within the meaning of the OHSA, which states a joint health and safety committee is required at a workplace at which 20 or more workers are regularly employed.
The Court of Appeal reasoned that by “excluding the truck drivers due to the nature of their employment relationship, the words ‘regularly employed’ were interpreted in a narrow fashion, one that is inconsistent with the objectives, purpose and legislative scheme of the OHSA.”
Although the word “employed” is not defined under the OHSA, the Court of Appeal turned to the definition of “employer” and concluded that, since UIOL is the employer of the truck drivers under the legislation, then “it stands to reason that the truck drivers are employed by it.”
Having reached this conclusion, the Court of Appeal turned to the question of whether the truck drivers were “regularly” employed by UIOL. Relying on the dictionary definition of “regular” as normal or customary, the Court of Appeal was able to conclude that, since it was normal or customary for UIOL to have between 30 and 140 truck drivers working for it, they were regularly employed by UIOL.
The Court of Appeal then proceeded to find that the Ontario Labour Relations Board 2000 decision in Taxi Taxi was wrongly decided, because its interpretation of “regularly employed” was inconsistent with the definitions of “worker” and “employer” under the OHSA, both of which definitions include independent contractors.
The Court of Appeal explained the narrow interpretation of “regularly employed” given by the courts below had the effect of denying the benefits of a joint health and safety committee to all workers except those in a traditional common law employment relationship and this would be inconsistent with the objectives, purpose and legislative scheme found within the OHSA.
Although the Court of Appeal found UIOL was required to establish and maintain a joint health and safety committee under the OHSA — something which UIOL had in fact done following the accident — it concluded it was not in the public interest to order a second trial and, therefore, no conviction would be registered against UIOL with respect to the charge that it did not have a joint health and safety committee in place at the time of the accident.
Once again, this decision emphasizes the unique nature of the OHSA as protective legislation designed to promote public health and safety that is to be interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme.
Employers who do not currently have a joint health and safety committee should reassess whether they are properly including in their assessment all workers, including those of independent contractors, who are “regularly employed” at their workplaces.
Likewise, employers who currently have a joint health and safety committee should be reminded they have responsibilities, not only for their own employees, but for the employees of those contractors and subcontractors who are working at their workplace.
Scott G. Thompson is partner at Hicks Morley Hamilton Stewart Storie LLP in Toronto. He can be reached at
[email protected] or (416) 864-7283.
