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Appeal Court decides Independent Owner Operator Truck Drivers must be counted for meeting obligation to form JHSC

Appeal Court decides Independent Owner Operator Truck Drivers must be counted for meeting obligation to form JHSC

Section 9(2)(a) of the Occupational Health and Safety Act (“Act”) in Ontario requires a joint health and safety committee (“JHSC”) at a workplace at which 20 or more workers are “regularly employed”. The Court of Appeal for Ontario (“Court”) recently decided that this includes independent owner operator truck drivers, who are not “employees” but self-employed individuals.  United Independent Operators Limited (“UIOL”) is a load broker who operates out of Woodbridge Ontario. They have 11 office employees and anywhere from 30 to 140 independent owner operator truck drivers contracted to do hauling, depending on the time of the year.

The Ministry of Labour (“MOL”) became involved when a truck driver who was contracted by UIOL, was crushed between his truck and that of another UIOL truck driver, causing a broken pelvis and two broken legs. The accident occurred at the worksite of a UIOL customer.  The MOL formed the view that the UIOL contravened the Act by failing to establish and maintain a JHSC.  UIOL disputed the order because they only had 11 full time employees and the truck drivers were not in an employment relationship. Nevertheless, they complied with the order by establishing and maintaining a JHSC. Despite this, the MOL still laid charges for failing to have such a committee in July 2004, when the truck driver was injured.

In finding that the UIOL was not required to establish and maintain a JHSC, the trial judge relied heavily on a case called 526093 Ontario Inc. (c.o.b. Taxi Taxi), [2000] O.O.H.S.A.D. No. 98 (QL) (“Taxi Taxi”), which was a decision of the Ontario Labour Relations Board (“OLRB”). That OLRB decision determined that “regularly employed” was held to apply only to workers who have a traditional employment relationship. As might be expected, the MOL appealed.  The Ontario Court of Justice dismissed the Appeal and agreed with the conclusions found in the Taxi Taxi decision.  Once again, the MOL appealed.

The Court felt that the appeal court judge’s reasoning in limiting the meaning of “regularly employed” was a little too narrow and inconsistent with the objectives, purpose and legislative scheme of the Act.  Because the Act is a remedial, public welfare statute intended to guarantee a minimum level of protection for health and safety of workers, it is to be interpreted generously rather than narrowly.  Recall that the Act in Ontario defines a “worker” very broadly and this definition is not limited to traditional employees but any “person who performs work or supplies services for monetary compensation” and this includes both dependent and independent contractors. Truck drivers at UIOL are therefore “workers” within the meaning of the Act.

Next the Court reviewed whether or not the truck drivers were “regularly employed”.  These terms individually or combined are not defined in the Act.  When legislative provisions are not defined, Courts will often turn to the “ordinary” meanings of the words to be interpreted.  This is why the appeal court started with the dictionary definition of “employed”. However, the Court of Appeal took a critically different starting point. They began with the Act’s definition of “employer”, which like “worker” is very broad and inclusive. “Employer” is defined as “a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services”.  The Court of Appeal determined that the “Taxi Taxi” decision was wrongly decided and inconsistent with the definitions of “worker” and “employer” in the Act.  Finally, the Court also commented on the Brewers Retail case which dealt with employees at “dispersed” workplaces such as retail outlets and warehouse locations in Sarnia. The Court held 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.

This decision is very important for the truck driving industry in Ontario as well many others which regularly ‘employ’ (interpreted very broadly to be consistent with remedial and protective provisions of the Occupational Health and Safety Act) independent or dependent contractors.  All should establish and maintain JHSC’s in Ontario counting both their “traditionally employed employees” and also, all of their regularly contracted independent or dependent contractors or owner operators.

Link to the court decision.

Cézanne Charlebois, Charlebois Associates

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