March 17, 2011 By: Christopher C. Rootham
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In the Winter 2010 edition of this newsletter, we reported upon the decision of the Ontario Court of Appeal in McKee v. Reid's Heritage Homes Ltd1, in which the Ontario Court of Appeal concluded that there exists a subset of independent contractor called "dependent contractor" who is entitled to reasonable notice of dismissal and, perhaps, some other common law rights traditionally reserved to employees. In two recent decisions, different tribunals have taken a broad interpretation of the term "employed" or "employee" in statutes, in order to ensure that a broader range of people are protected by that statute.

The first decision is of the Ontario Court of Appeal. The Ontario (Ministry of Labour) v. United Independent Operators Limited2, decision arose from a worksite accident. United Independent Operators Limited ("UIOL") was a load broker. Customers contracted with it to transport aggregate (sand, gravel and crushed stone). In turn, UIOL contracted with truck drivers, who independently owned and operated their trucks, to pick up the aggregate from quarries, gravel pits and construction sites and transport it to UIOL's customers. Section 9(2)(a) of the Occupational Health and Safety Act required a Joint Health and Safety Committee at a workplace at which "twenty of more workers are regularly employed." Singh, a truck driver who worked for UIOL, was crushed between his truck and that of another UIOL truck driver. He suffered a broken pelvis and two broken legs. While investigating the accident, the Ministry found that UIOL had contravened the Act by failing to establish and maintain a JHSC. The Ministry of Labour determined that United's failure to have a joint health and safety committee (JHSC) in place contravened s. 9(2)(a) of the Ontario Occupational Health and Safety Act (Act).3 United argued that it only had 11 full-time employees rather than the 20 required by the law. Since the truck drivers were independent contractors, United did not consider them as "regularly employed".

The Ontario Court of Appeal eventually ruled that truck drivers were "regularly employed" by United and should be counted in determining whether the company had the obligation to put a JHSC in place. The court stated that since the Act is a remedial public welfare statute and is intended to guarantee a minimum level of protection for the health and safety of workers, it should be interpreted generously and broadly rather than narrowly. The Court of Appeal concluded that although the truck drivers are independent contractors, they were still "workers" under the Act and that the Act does not require that somebody be an "employee" at common law in order to be "regularly employed" under the Act.

The second decision is of the British Columbia Human Rights Tribunal. In McCormick v. Fasken Martineau Dumoulin LLP4 an Equity Partner alleged that his law firm, Fasken Martineau Dumoulin LLP ("the firm") discriminated against him by requiring him to retire at the age of 65. According to the firm's Partnership Agreement, each Equity Partner was required to retire as an Equity Partner at the end of the year in which the Partner reached the age of 65. British Columbia's human rights statute prohibits discrimination against employees. The firm argued that the Tribunal did not have jurisdiction to hear the complaint as Mr. McCormick was not in an employment relationship with the firm.

The Human Rights Tribunal considered important factors in determining Mr. McCormick's employment status5, including: "utilization", "control", "financial burden" and "remedial purpose". The Tribunal held that all factors favored treating Mr. McCormick as "employed" by the firm for the purposes of the Code.Since the Supreme Court of Canada has underlined that human rights legislation should be given a broad and liberal interpretation, the definition of "employment" in s. 1 of the Code should be interpreted generously and flexibly, consistent with that status and its underlying purposes. The Tribunal concluded that Mr. McCormick was an employee for the purposes of the Code and denied Fasken's application to dismiss the complaint. Although common law would not recognize an Equity Partner in a law firm as an "employee", for the purposes of the Human Rights Code, a Partner will now be protected like an "employee" against prohibited discrimination.

While the British Columbia decision is of limited use in Ontario (as the Ontario Human Rights Code is not limited to "employees" but prohibits discrimination in "contracts" as well), both of these decisions demonstrate that courts and tribunals will stretch the meaning of the term "employment" in statutes in order to ensure that as broad a range of people as possible may take advantage of those statutes.


1 [2009] O.J. No. 5489.

2[2011] O.J. No. 236.

3 Supra note 2.

4 [2010] B.C.H.R.T.D. No. 347.

5 2005 BCHRT 361.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law