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Independent contractors are regularly employed for purposes of OHSA

truck1The Ontario Court of Appeal just rendered an interesting decision regarding whether independent contractors are to be counted when determining the need to establish and maintain a joint health and safety committee pursuant to subsection 9(2)(a) of Ontario’s Occupational Health and Safety Act (OHSA). The subsection requires a joint health and safety committee at workplace where 20 or more workers are regularly employed. In this case, the Court had to decide whether the independent truck drivers who worked with the company were “regularly employed”. The answer was yes.

The company is a load broker. Customers contract with the company to transport materials such as sand, gravel and crushed stone. The company then contracts with truck drivers to pick up the materials from quarries, gravel pits and construction sites and transport them to locations required by the company’s customers.

The number of truck drivers working for the company ranges from 30 to 140, depending on the time of year. There was no question that the truck drivers were considered independent contractors; they:

  • Spend the bulk of their time working at various pits and quarries that are not owned by the company
  • Do not have employment agreements with the company
  • Own their own trucks and pay all associated expenses, including insurance, fuel, repairs, tires, tolls and traffic tickets
  • Mostly own their own trailers (though some rent them from the company)
  • Own a hard hat, safety boots, reflective vest and wheel chocks and they have to sign a company form saying that they own these items
  • Do not have statutory deductions (income tax, CPP, EI) taken from their payments, and the company does not pay for Workplace Safety and Insurance Board coverage or give them Records of Employment when the working relationship is terminated

However, they do have an orientation session with the company lasting approximately an hour and a half. During this time, they review a company handbook and a safety video, and then take a quiz on the content of the video and meet with the dispatcher of the company. The company handbook specifies the truck driver’s duties and include direction on daily responsibilities, procedures to be followed in the quarries, what the truck drivers should wear, and how they should generally operate when working for the company. Moreover, the drivers frequently receive safety information when picking up their cheques at the office, and periodically have to attend health and safety meetings (some at the company office, some offsite).

The issue about whether a joint health and safety committee was required arose after an accident occurred with one of the truck drivers at a customer’s worksite. The Ministry of Labour decided that the company contravened the Act by failing to establish and maintain a joint health and safety committee. The ministry subsequently issued an order requiring the company to establish one.

Although the company disputed this finding, it complied and formed the joint health and safety committee.

Meanwhile, it argued that it had only 11 full-time employees and that the truck drivers were not “regularly employed” by it; the drivers were independent contractors.

At trial, the company was successful and it was not required to form the committee. The Ministry of Labour appealed, but the Ontario Court of Justice dismissed the appeal and upheld the decision.

The Ministry of Labour appealed again.

This time, the Ontario Court of Appeal agreed with the Ministry of Labour and held that the company had to create the joint health and safety committee. It found that the words “regularly employed” in subsection 9(2)(a) of the Act encompass more than just those workers in a traditional employment relationship. That is, the lower court interpreted the words “regularly employed” in a narrow fashion that was inconsistent with the objectives, purpose and legislative scheme of the OHSA. Since the Act is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers, it has to be interpreted generously rather than narrowly.

More specifically, the Appeal Court found:

  • Under the Act, workers are persons who perform work or supply services for monetary compensation. Therefore, the drivers were clearly workers under the Act.
  • Given the dictionary meaning of the word, the drivers were “employed” by the company. Also, “employer” had been held in the past to include the employer of an independent contractor.
  • The real question was whether the truck drivers were “regularly” employed. The Court said they were. Even though the workers had a home base to which they reported for instructions, assignments and payroll, they spent little or no time at the home base, and they were still considered in the count for the purpose of determining whether the JHSC threshold of 20 workers had been met. Dispersed workplaces are commonplace for a number of groups of workers, including truck and bus drivers, and this is not a reason to deny workers the benefit of a joint health and safety committee.
  • There has to be a broader interpretation of the words “regularly employed” in subsection 9(2)(a) of the Act. Just as a dispersed workplace is not a reason to deny workers the benefit of a joint health and safety committee, neither is the absence of a traditional employment relationship.
  • A broader interpretation of “regularly employed” is consistent with a contextual analysis and promotes the purpose of the legislation. The Act was built on the notion of the internal responsibility system, and the joint health and safety committee plays a critical role in the system. By limiting the phrase to only traditional employment relationships, the scope of the subsection would be seriously curtailed, contrary to the purpose of the Act.

Therefore, although the truck drivers were independent contractors, the employer had to count them when determining whether it met the minimum threshold to implement a JHSC (per subsection 9(2)(a) of the OHSA).

However, the Court of Appeal decided to stay the proceedings instead of ordering a new trial, since the company promptly complied with the Ministry of Labour order and established and maintained a joint health and safety committee.

Interestingly, the Court stated, “However, the question of whether the truck drivers are regularly employed at a workplace was not decided in the courts below nor was it argued before us. Thus, deciding the matter in issue on this appeal has not finally decided whether the offence has been made out” (emphasis added).

What do you think about the decision?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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