An important Ontario Court of Appeal ruling has far-reaching implications for determining whether a workplace must establish a joint health and safety committee (JHSC) or select a worker health and safety representative as required by the Occupational Health and Safety Act
The case brought before the Court involved the Ministry of Labour (MOL) and United Independent Operators Limited (UIOL), a freight broker operating in Woodbridge. At the time, UIOL had 11 employees working at its office and, depending on the time of year, anywhere from 30 to 140 independent truck drivers working on contract.
A panel of Ontario Court of Appeal judges found UIOL must include independent contractors in their count of “regularly employed” workers.
The MOL had charged UIOL for failing to comply with section 9(2) of the Act,
which requires a JHSC at a workplace where 20 or more are “regularly employed.” The charge came after an incident investigation by MOL inspectors. (Amrik Signh, a truck driver with UIOL had sustained a broken pelvis and two broken legs when he was crushed between his truck and another at the worksite of a UIOL customer.) UIOL complied with the order, but nonetheless decided to appeal it. The case came to the Ontario Court of Justice in 2007.
In challenging the charge, UIOL argued section 9(2) did not apply because a “regularly employed” worker is a person employed under a traditional employment contract. The truckers were contractors without an UIOL employment contract.
The trial judge agreed with UIOL’s view of “regularly employed” and acquitted. The judge in part relied on a Labour Board decision (Taxi Taxi, 1998) which ruled “regularly employed” was a reference to a traditional employment relationship. An appeal by the Ministry of Labour resulted in a new trial October 2009. The appeal judge upheld the trial judge’s decision.
However, a further appeal to a panel of Court of Appeal judges by the MOL was decided in January 2011. The justices noted that, as defined by OHSA, UIOL is the employer of the truckers. And as “employee” is not otherwise defined, it would be logical that the truckers must be employees of their employer. Following from this logic, the court found that the truckers were employees of UIOL.
In addressing the meaning of “regularly,” the justices did not agree with UIOL’s argument that the word specified a form of employment – namely the traditional employment contract. The justices used a dictionary definition of “regularly” and found that the word meant “recurring uniformly or calculably in time or manner, habitual constant…normal, customary or usual occurring at fixed or pre-arranged intervals.”
The justices further reasoned, “The OHSA is a remedial public welfare statute whose purpose is to guarantee a minimum level of health and safety protection for workers in Ontario. This broad purpose must inform the interpretation of s. 9(2)(a) which requires the establishment of a JHSC, an important mechanism in achieving the legislative objective of enhanced worker safety.
“Interpreting the words ‘regularly employed’ to include the truck drivers makes sense contextually and supports the purpose of the legislation.”
This case clarifies the correct test to determine compliance with section 9(2) or 8(1) – both of which use the word “regularly”. For purposes of determining whether to establish a JHSC or select a worker health and safety representative the employee count should include workers in various contractual relationships not simply those working under an employment contract.
A decision by an MOL inspector to not order a joint committee (or health and safety representative) where the regular count of workers at the workplace exceeds nineteen (or five) – whether they be temporary workers, sub-contracted workers or independent contract workers – should be brought to the union’s attention as there may be solid grounds for a Labour Board appeal.