Those Ontario employers who are provincially regulated in labour and employment matters will, if they engage independent contractors and/or workers from temporary agencies, wish to consider the application to their businesses of a Court of Appeal decision released on January 18, 2011. In Ontario (Labour) v. United Independent Operators Limited ("United"), the Court of Appeal considered the meaning of the phrase "regularly employed" in section 9 of the Occupational Health and Safety Act ("OHSA"), the section of the OHSA that governs the establishment in workplaces of Joint Occupational Health and Safety Committees ("JHSC").

United was a truck brokerage and dispatch service. It had a single business premise at which it employed 11 employees. Its customers contracted with it to transport aggregate and it, in turn, contracted with truck drivers - who independently owned and operated their trucks - to transport the aggregate to certain United customers. The number of truck drivers varied from 30 to 140 depending upon the time of the year. When an independent truck driver was critically injured, the Ministry of Labour conducted an investigation and, when it determined that there was no JHSC, charged United for having failed to ensure the establishment of a JHSC at its workplace. United argued that there was no statutory obligation upon it to have a JHSC as it had less than 20 workers regularly employed at its workplace. This argument prevailed at trial and at the first level of appeal. The Court of Appeal overturned the acquittal although, in light of the novel issue and the state of the law prior to the Court of Appeal decision, it ordered a stay of the prosecution.

This decision is predicated upon the OHSA definition of "employer" which, the Court of Appeal held, had to be interpreted, like all public welfare legislation, in a broad and liberal manner so as to promote the purposes of the OHSA.

The definition of "employer" in the OHSA is much broader than both the definition of "employer" in other statutes and the common law meaning of the word. Thus, for OHSA purposes the "employer" is an employer of not only its own employees but also of independent contractors that it engages. It is for that reason that the OHSA refers throughout, to "workers" rather than to "employees". The importance of the distinction was illustrated some years ago in a prosecution of Grant Forest Products. Grant routinely used outside contractors to provide various services to it including, from time to time, contract labour. An employee of an outside contractor who had been trained by the outside contractor was injured at a Grant facility. Grant was charged as the "employer" of the contractor's employee. At trial and on appeal Grant argued that it was not the employer. This argument failed given the expansive definition of "employer" in the OHSA and Grant was convicted.

Until now, it had been generally accepted that section 9(2) which provides that "a joint health and safety committee is required...at a workplace at which twenty or more workers are regularly employed" was to be interpreted so as to exclude independent contractors in the determination of how many persons were "regularly employed". The prevailing view was that section 9(2), in referring to those "workers" who were "regularly employed", was deliberately phrased to include only a certain type of "worker" - those that were "employed". This view was reinforced by the fact that in those workplaces where less than twenty persons were regularly employed, the OHSA requires that there be a Health and Safety Representative "...where the number of workers regularly exceeds five". It was felt that the legislative intent was clear that all workers, including those who were independent contractors, would be included for the determination as to whether or not there needed to be a Health and Safety Representative, but only workers who were "employees" in the employment law sense would be counted for the determination of whether or not there should be a JHSC.

The Court of Appeal has held that that view is incorrect and that the term "regularly employed" includes independent contractors.

The implications are significant. For companies that make significant use of independent contractors, the inclusion of independent contractors within the phrase "regularly employed" not only impacts upon whether or not there need be a JHSC but, in addition, will impact upon the size of the JHSC. Furthermore, there will be complications arising out of the process by which worker representatives get elected to the JHSC and get certified.