If your company utilizes independent contractors in Ontario, it may now be required to establish a joint health and safety committee. In Ontario (Ministry of Labour) v. United Independent Operators Limited, the Ontario Court of Appeal ruled that independent contractors count as workers “regularly employed” by an employer, and therefore must be included when determining whether an employer is required to establish a joint health and safety committee under the Occupational Health and Safety Act.

In July 2004 an independent contractor, operating as a truck driver for United Independent Operators Limited, suffered a broken pelvis and two broken legs when he was trapped between his truck and that of another United truck driver. As the accident occurred at the worksite of a United customer, the Ministry of Labour conducted an investigation. The Ministry charged United with failure to establish and maintain a joint health and safety committee (JHSC), and issued an order under section 9(2) of the OHSA requiring United to establish a JHSC. Section 9(2) of the OHSA requires a JHSC to be established at a workplace at which “20 or more workers are regularly employed.” At that time, United had 11 full-time employees, and throughout the year utilized the services of 30-140 independent contractors. United appealed, arguing that independent contractors did not fall under section 9(2) and as such it did not meet the threshold of 20 or more regularly employed workers.

After two trial decisions in United’s favour, the Ministry of Labour appealed to the Ontario Court of Appeal. The issue before the Court was one of statutory interpretation, and in a unanimous decision, the Court ruled that independent contractors were “workers” that were “regularly employed” within the meaning of the OHSA.

To reach this determination, the Court conducted a contextual analysis, considering the language of the OHSA, the context in which the language was used, and its purpose. The Court held that United’s independent contractors met the definition of “workers” set out in the OHSA, as they were clearly “persons who performed work or supplied services for monetary compensation.”

The Court went on to find that United’s independent contractors were also “regularly employed”, and reached this determination by considering the OHSA’s definition of the word “employer”. The Court held that as United was clearly an “employer”, it stood to reason that the independent contractors were therefore employed by United. The final hurdle was whether the drivers were “regularly employed” by United, and in determining this the Court referred to the dictionary definition of “regular”, being “normal, customary or usual.” As United had between 30-140 independent contractors working at any given time, the Court determined that they were in fact “regularly employed” by United.

The Court noted that its interpretation of the terms were consistent with a contextual analysis and promoted the purpose of the OHSA, which is to act as a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers.

Of note is that in reaching this ultimate conclusion, the Court had to overturn existing OLRB jurisprudence, namely the decision of 526093 Ontario Inc. v. (Ontario Ministry of Labour) in which the OLRB held that the words “regularly employed” applied only to those workers holding a traditional employment relationship. The Court disagreed, and stated that when interpreting the statutory language in that case, the Board failed to conduct a contextual analysis of the specified terms, or consider the overarching purpose of the OHSA. The Court also drew a comparison between United’s circumstances and those present in Brewers Retail Inc. (Re), where the OLRB held that employees across a dispersed workplace must be counted when determining whether the threshold for a JHSC had been met. The Court stated that just as a dispersed workplace is not a reason to deny workers the benefit of a JHSC, neither is the absence of a traditional employment relationship.

Our view:

The Court’s direction is clear: employers must now count independent contractors among workers when determining whether the threshold for a JHSC under section 9(2) has been met. It is our recommendation that every workplace currently utilizing the services of independent contractors conduct an evaluation to determine whether or not a JHSC is now required.