Independent contractors count towards health and safety committee threshold

March 14, 2011

Contacts

The Ontario Court of Appeal recently released its decision in Ontario (Labour) v. United Independent Operators Limited. This decision is important for Ontario employers that retain independent contractors, as such employers may now have to establish joint health and safety committees where, previously, a joint health and safety committee was not required.

The decision analyzed section 9(2) of the Occupational Health and Safety Act (“OHSA”), which provides:

           9(2) A joint health and safety committee is required,

a.at a workplace at which twenty or more workers are regularly employed.

Background

United Independent Operators Limited (“UIOL”) employed 11 workers and had entered into independent contractor relationships with a number of truck drivers working on behalf of UIOL.

The Ministry of Labour became involved when one of UIOL's independent contractors was seriously injured on a job site belonging to a UIOL client.

Despite the fact that UIOL had only 11 workers, the Ministry issued an order requiring it to establish a joint health and safety committee. In addition, the Ministry charged UIOL with the offence of failing, as an employer, to ensure that a joint health and safety committee was created and maintained at its workplace. The charge was laid based on the Ministry's view that UIOL, taking into account independent contractors, regularly employed 20 or more workers, thereby triggering the requirement that UIOL establish a joint health and safety committee.

UIOL defended the charge laid against it on the basis that it did not regularly employ 20 or more workers.

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Decisions Below

At trial, Justice of the Peace James Oates agreed with UIOL and dismissed the charge.

Oates held that the phrase "regularly employed" in section 9(2)(a) contemplated a traditional employer-employee relationship. As a result, the independent contractors retained by UIOL were not regularly employed and were improperly taken into account by the Ministry when it determined that a joint health and safety committee should be established.

Excluding the independent contractors, UIOL had 11 workers and did not require a joint health and safety committee.

Justice Peter Tetley upheld the decision of Justice of the Peace Oates. [i]

Although noting that the OHSA is purposive legislation designed to protect the health and safety of workers, Justice Tetley agreed that the phrase "regularly employed" in section 9(2)(a) referred to individuals in traditional employer-employee relationships.

Further, Justice Tetley recognized the practical difficulties involved in establishing a joint health and safety committee at a workplace where independent contractors caused the threshold of 20 or more workers to be met. Namely, he recognized that the joint health and safety committee would comprise individuals with a limited connection to the workplace.

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Court of Appeal

The Ontario Court of Appeal [ii] overturned the decisions of the lower courts.

Relying on the OHSA's definitions of “worker” and “employer," the Court of Appeal found that independent contractors could be “regularly employed” for the purpose of section 9(2)(a) of the OHSA.

In respect of those definitions, the Court of Appeal noted that a “worker” includes an independent contractor and an “employer” includes an entity that enters into an independent contractor relationship. Reasoning that the definitions contemplate employment of independent contractors by employers, the Court concluded that the independent contractors were “employed” for the purpose of section 9(2)(a).

Further, relying on UIOL's practice of retaining independent contractors, the Court of Appeal concluded that the independent contractors were regularly employed. Interestingly, the Court determined the regularity of employment with reference to the employer's practice of hiring and not with reference to the regularity of service of any particular independent contractor.

The Court of Appeal acknowledged the practical challenges of maintaining a joint health and safety committee consisting of independent contractors. Despite this, it indicated that to exclude independent contractors from the definition of “regularly employed” would:

  • be inconsistent with the objectives and purpose of the OHSA, which was to guarantee a minimum level of protection for the health and safety of workers; and
  • undermine the purposes of its joint health and safety committees, which increase “the ability of workers and employers to prevent and respond to dangerous and changing conditions.”
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Practical Advice

Prior to the Court of Appeal's decision, it had been widely assumed that an employer would only be required to establish a joint health and safety committee where it was the direct employer of at least 20 workers who could be said to be in a traditional employer-employee relationship.

Ontario employers that have not established joint health and safety committees because they do not regularly employ 20 or more workers should determine if they must now establish committees.

A committee will likely be necessary where an employer has a combination of (i) 20 or more workers in a traditional employment relationship and (ii) contractual relationships for services in exchange for remuneration.

Employers should keep detailed records of the contractual relationships they enter into, including the frequency of the relationships and their duration. This information will be necessary to defend a charge that the employer regularly employed third parties where the nature of the contractual relationships is alleged to trigger the employer's obligation under section 9(2)(a).

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Footnotes

[i] Unreported (September 11, 2008, Newmarket Provincial Offences Court, Justice Tetley).
[ii] 2011 ONCA 33.

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