COURT CLARIFIES JHSC COVERAGE
By Dan Birch
The Court of Appeal for Ontario has weighed in on the meaning of “regularly employed” workers under the Occupational Health and Safety Act, and that opinion may have implications for when joint health and safety committees (JHSCs) are required.
The January 18 ruling by Ontario’s high court not only overturns two lower court decisions, it will conceivably require new JHSCs to be formed right across the province.
The court’s three-judge panel unanimously agreed that independent contractors – in this case, independent truck owners/operators – should be considered “regularly employed” pursuant to Section 9(2)(a) of Ontario’s OH&S Act, which speaks to employee thresholds for mandated JHSCs.
“The decision will have implications for a large number of Ontario employers,” suggests Robert England, a partner at Miller Thomson LLP in Toronto. “In my experience, employers in Ontario are increasingly using independent contractors and temporary agencies,” England notes, adding that these employers now must determine whether or not a JHSC is required.
The ruling could affect companies in various sectors, says Jeremy Warning, a partner at Heenan Blaikie LLP in Toronto. “Employers may have workers who work as truck drivers, taxi and limousine drivers, salespersons, consultants, [and who] work predominantly from home or otherwise infrequently attend a particular workplace,” Warning points out.
Justice Eileen Gillese, writing on behalf of the court, notes that although “the truck drivers are independent contractors, they must be counted” when determining whether or not the “regularly employed” threshold has been met.
This is the first time the court has had to contemplate the meaning of “regularly employed” under Section 9(2)(a). The case involves United Independent Operators Ltd., a transportation load broker based in Woodbridge, Ontario that contracts truck drivers who independently own and operate their vehicles. Operators are used to pick up aggregate from quarries, gravel pits and construction sites and transport the material to customer locations.
Amrik Singh, a driver for United Independent Operators, was injured in July of 2004 while at a customer’s work site. Singh suffered a broken pelvis and two broken legs when he was crushed between his rig and another truck operated by a second driver for United Independent Operators.
Justice Gillese points out that an investigation by Ontario’s Ministry of Labour (MOL) determined that the company had failed to maintain a JHSC, representing a contravention of the OH&S Act.
The MOL directed United Independent Operators to establish a joint committee, which the company did. Despite the compliance, oh&s charges around the company’s alleged failure to establish a JHSC were also pursued.
United Independent Operators disputed its obligation to have a joint committee, arguing that the company only had 11 full-time staff and the drivers were not “regularly employed.”
Ontario’s OH&S Act states that a JHSC is required “at a workplace at which 20 or more workers are regularly employed.” As well, in line with Section 9(7), at least half of the committee members must be non-managerial workers.
The company’s position remained consistent during a trial in 2007 and the subsequent MOL appeal to the Ontario Court of Justice, which released its decision in October, 2009.
In the latest ruling, Justice Gillese writes the trial judge relied heavily on an earlier, unrelated ruling by the Ontario Labour Relations Board (OLRB). In 2000, the OLRB concluded “regularly employed” only applies to workers who have a traditional employment relationship with their employers.
Rather than explicitly defining what is meant by “traditional relationship,” Justice of the Peace James Oates, the trial judge, cited a number of points in determining that drivers for United Independent Operators were not in such a relationship. These included that the company does not own any of the trucks; the company is, in effect, a dispatch business; the drivers pay the company a fee for its dispatch services; the drivers pay all taxes, fees and tolls, and they arrange and pay for Workplace Safety and Insurance Board coverage; and the drivers do not operate out of the company’s office.
But Justice Gillese came to her own conclusions. Inferring that Section 9(2)(a) of Ontario’s OH&S Act only applies to traditional employment relationships “seriously” curtails the section’s scope and limits the number of JHSCs that must be established. The narrow interpretation, in turn, interferes with the purpose of the act, she notes.
“It is clear that JHSCs play a critical role in [the internal responsibility system]. JHSCs assist by increasing the ability of workers and employers to prevent and respond to dangerous and changing conditions,” Justice Gillese writes.
The ruling “provides clear legal authority in support of the MOL’s policy” on independent contractors, and also promotes the larger goal of improving worker health and safety, says ministry spokesperson Matt Blajer. During site visits, Blajer notes, MOL inspectors “regularly monitor workplaces for compliance with OH&S Act requirements related to the proper functioning of the internal responsibility system, including the requirements with respect to JHSCs.”
In response to the ruling, England says he expects that ministry inspectors have been visiting employers where large numbers of independent contractors are engaged to inform them of the decision and the need to comply.
For his part, Warning anticipates that MOL enforcement “will be dependent on the particular circumstances.” These circumstances could include the following:
• if the absence of a JHSC is discovered as a result of a routine audit, in response to a complaint or during the investigation of an incident;
• if other measures are in place to carry out functions similar to a JHSC, such as having a safety representative in place;
• the reason why a committee has not been created; and,
• the employer’s history of OH&S Act compliance.
Heather Hettiarachchi, an associate at Clark Wilson LLP in Vancouver, says the Ontario ruling “could be of persuasive authority” in British Columbia, although it would not be binding in court.
Consider that there are significant differences in language around JHSC legal requirements in the two provinces – and others, for that matter. An independent contractor may be counted in the JHSC tally in one province, but not another.
British Columbia’s Workers Compensation Act (WCA) is “more restrictive” concerning JHSCs than Ontario’s OH&S Act, Hettiarachchi points out. The WCA notes that a joint committee is required “in each workplace where 20 or more workers of the employer are regularly employed,” while the OH&S Act notes the committee is required at a workplace at which 20 or more workers are regularly employed.
Hettiarachchi says she is not aware of any British Columbia court having ruled that independent contractors must be included when doing a head count for a JHSC. “The less restrictive language in the OH&S Act permitted the Ontario court to take a very liberal approach,” she suggests.
Even less restrictive is Section 29(1) of Nova Scotia’s OH&S Act, which states that a JHSC is required “at every workplace where 20 or more persons are regularly employed.” Noella Martin, a partner at Wickwire Holm in Halifax, says using “persons” instead of “workers” is important because the former could encompass independent contractors.
But what could Ontario’s high court ruling mean beyond JHSC head counts? (United Independent Operators likely got the answer it was seeking when its oh&s charge was stayed. Noting the company’s compliance with the MOL order, Justice Gillese writes that the available legal precedence at the heart of the case favoured the company’s position.)
The question remains: Were the truck drivers regularly employed at a company workplace? This problem “was not decided in the courts below nor was it argued before us,” Justice Gillese notes. “Thus, deciding the matter in issue on this appeal has not finally decided whether the offence has been made out,” she adds.
In most Ontario workplaces, Warning suggests that determining if 20 or more workers are regularly employed will not be difficult. “Other instances, such as organizations that operate multiple facilities or have a dispersed work force, may require a detailed assessment to make this determination,” he says.
A reasonable approach may be for employers to consider the nature and degree of a worker’s connection to the workplace, Warning says, adding that such an analysis could consider multiple factors, including the following:
• how frequently a worker attends a particular workplace;
• the amount of time a worker spends at a particular workplace as a percentage of the worker’s overall duties or working time;
• the reason(s) the worker visits a particular workplace;
• the nature of work performed while at the workplace; and,
• the manner in which the organization in question has arranged its operations.
Warning says the significance of each factor “could vary depending on the particular circumstances.” If the obligation to have a JHSC is unclear, a company “would be well-advised to obtain guidance before finalizing its approach.”
Dan Birch is an acting assistant editor of OHS CANADA.
The safety charge against United Independent Operators Ltd. and the decision by Ontario’s appeal court to stay the count have sparked interest among – and prompted phone calls from – similar businesses, reports Robert England, a partner at Miller Thomson LLP in Toronto.
The firm has also received calls “from clients who did not, frankly, understand their existing obligations to workers, quite irrespective of their obligation to include independent contractors in the context of Section 9(2) of the [Occupational Health and Safety Act],” England says. Although the expansive definition of an “employer” has long been part of the OH&S Act, numerous employers remain “unaware that they have obligations to independent contractors and workers supplied by third party employment agencies.”
Noella Martin, a partner at Wickwire Holm in Halifax, advises that “organizations need to seriously evaluate how they use any independent contractor or temp agencies, not only for purposes of occupational health and safety issues, but also [for] things such as union certification applications.”
Whether or not contractors must be counted in a joint health and safety committee tally, employers should include them in oh&s programs, suggests Heather Hettiarachchi, an associate at Clark Wilson LLP in Vancouver. Doing so will “help to delineate roles, responsibilities and accountability for tasks relating to health and safety, and this would, in turn, lead to reduced injuries, lost production hours, etc.,” Hettiarachchi advises.