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
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
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.
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.
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