Williams HR Law LLP

INDEPENDENT CONTRACTORS CAN TRIGGER JHSC REQUIREMENT

January 25, 2011

Subsection 9(2)(a) of the Occupational Health and Safety Act (“OHSA”) requires a joint health and safety committee (“JHSC”) at a workplace in which 20 or more workers are regularly employed.  In a recent decision issued on January 18, 2011, the Ontario Court of Appeal considered, for the first time, whether independent contractors should be counted when determining whether a JHSC must be established and maintained.

United Independent Operators Limited Ltd. (“UIOL”), a load broker, contracts with its customers to transport construction aggregate (sand, gravel and crushed stone). UIOL subcontracts with truck drivers to pick up and deliver the loads.  At the time of the incident giving rise to this case, UIOL employed eleven individuals at its sole location in Woodbridge, Ontario. The number of truck drivers working for UIOL ranged anywhere from 30 to 140 depending on the time of the year. These drivers were not in an employment relationship with UIOL and had been found to be independent contractors by the WSIB, Revenue Canada and the Ministry of Labour, Employment Standards Branch.

While investigating an accident that led to the injury of a driver in July of 2004, the Ministry of Labour was of the view that UIOL had contravened the OHSA by failing to establish and maintain a JHSC pursuant to s.9(2)(a). The Ministry laid charges against UIOL but was unsuccessful at both the trial level and on appeal before Ontario Court of Justice before finally having the decision overturned by the Ontario Court of Appeal where a stay of proceedings was ordered.

The Ontario Court of Appeal found, among other things, that in excluding the truck drivers because they were technically independent contractors, the words “regularly employed” had been interpreted too narrowly given the legislative purpose of the OHSA. The Court held that because the OHSA is a remedial public welfare statute that is intended to guarantee a minimum level of protection for the health and safety of workers, it should be interpreted generously.

The Court emphasized the importance of JHSCs and their central role in achieving the objective of safe and healthy workplaces in Ontario.  With this in mind, in considering whether s.9(2)(a) intended to capture only those workers employed in a traditional employment relationship, the court held that such an interpretation would “seriously curtail” the scope of s.9(2)(a) and run contrary to the legislative purpose of the OHSA.

In Conclusion, the Court held that the truck drivers, despite being independent contractors, are to be counted when determining the threshold requirement for JHSCs set out in s.9(2)(a).

This decision has significant implications for those employers who utilize the services of independent contractors. In addition to triggering s.9(2)(a) for those employers such as UIOL who are pushed over the 20 worker threshold, the section has implications for just how large a JHSC needs to be. For example, the OHSA requires a workplace with fewer than 50 workers to have a minimum of 2 members on the JHSC, whereas a workplace with more than 50 workers must have a minimum of 4 members.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.