Labor & Employment Law

Counting the "regularly employed" under the Ontario OHSA

By Michael Fitzgibbon

The Ontario Court of Appeal yesterday released an important decision interpreting the Ontario Occupational Health and Safety Act.  The case, Ontario (Labour) v. United Independent Operators Limited considered whether independent contractors are to be counted when determining whether an employer must establish and maintain a joint health and safety committee under section 9(2)(a) of the Act.  

Section 9(2) provides that:

(2) A joint health and safety committee is required,

(a) at a workplace at which twenty or more workers are regularly employed;
(b) at a workplace with respect to which an order to an employer is in effect under section 33; or
(c) at a workplace, other than a construction project where fewer than twenty workers are regularly employed, with respect to which a regulation concerning designated substances applies.

The lower court interpreted the words "regularly employed" narrowly such that independent contractors were not "regularly employed" for purposes of section 9(2)(a) of the Act.  The Court of Appeal held that the lower court was in error and that:

In excluding the truck drivers due to the nature of their employment relationship, the words ?regularly employed? were interpreted in a narrow fashion, one that is inconsistent with the objectives, purpose and legislative scheme of the OHSA. 

The Court of Appeal relied upon Ontario (Ministry of Labour) v. Hamilton (City):

When interpreting [the OHSA], it is important to bear in mind certain guiding principles.  Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and the objectives of the legislative scheme.  Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature?s public welfare objectives are to be avoided.

When interpreting legislation, the Court observed that it must examine "the language of the provision, the context in which it is used, and the purpose of the legislation".  When looking at these matters, the Court concluded that the truck drivers, despite being independent contractors, "must be counted when determining whether the threshold requirement in s. 9(2)(a) has been met".

This is a significant decision and worth a close read.  It is arguably, at odds with what is commonly thought of as "regularly employed".  This may well not be the last word we hear on this subject.

Full post as published by Thoughts from a Management Lawyer on January 19, 2011 (boomark / email).