Ontario Labour Relations Board

1580-99-HS 526093 Ontario Inc. c.o.b. as Taxi-Taxi, Appellant v. Inspector Tracy Kelly and Ministry of Labour, Responding Parties.

BEFORE: Harry Freedman, Vice-Chair.

APPEARANCES: Michael Horan and Donald Wortman for the appellant; Brian Fukuzawa for the responding parties.

DECISION OF THE BOARD; May 12, 2000

1. This is an appeal under section 61 of the Occupational Health and Safety Act, R. S. O. 1990, c. O. 1 as amended (the "Act") from the order of Inspector Tracy Kelly issued on August 10, 1999 in F.V. No. 885980 by which she directed the appellant to establish and maintain a joint health and safety committee at its workplace. The appellant had sought a suspension of the Inspector's order under section 61 (7) of the Act pending the disposition of the appeal. The Board (differently constituted), by decision dated September 10, 1999, in Board File No. 1581-99-HS granted the appellant's request and suspended the order pending the adjudication of the appeal. The responding parties did not at any time assert that section 9 (39) of the Act limited the Board's authority to determine this appeal.

2. The appellant asserted two distinct but related grounds for appealing the order. It submits that it has fewer than twenty workers who work at any one of its workplaces and, in any event, it does not have a workplace "at which twenty or more workers are regularly employed".

3. In order to understand the grounds of appeal and the order issued by the inspector, it is necessary to review the relevant provisions of the Act. The definitions of "employer", "worker" and "workplace" in section 1 (1) of the Act provide:

"employer" means 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 and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services;

"worker" means a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program;

"workplace" means any land, premises, location or thing at, upon, in or near which a worker works.

Section 9 of the Act requires that joint health and safety committees be established at certain workplaces and mandates the composition of those committees. The relevant parts of section 9 provide:

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

(a) at a workplace at which twenty or more workers are regularly employed;

(6) A committee shall consist of,

(a) at least two persons, for a workplace where fewer than fifty workers are regularly employed;

(7) At least half the members of a committee shall be workers employed at the workplace who do not exercise managerial functions.

(9) The…employer shall select the remaining members of a committee from among persons who exercise managerial functions for the…employer and, to the extent possible, who do so at the workplace.

(10) A member of the committee who ceases to be employed at the workplace ceases to be a member of the committee.

4. The parties were able to agree on all of the relevant facts and presented the Board with an agreed statement of fact, thus dispensing with the need to call any evidence. The parties agreed to the following facts:

1. 526093 Ontario Inc. carries on business as "Taxi Taxi" (the "Company") in Oshawa, Ontario. It is the smaller of the two taxi companies in that City.

2. Taxi Taxi is owned and controlled by Donald Wortman ("Wortman"). The Company carries on business from the premises at 164 Bloor Street East in Oshawa.

3. Those premises are comprised of an office, a small yard, and a repair shop. (see pictures attached). [Pictures omitted]

4. There are eight office people who do all answering and dispatch for the Company. They work in the office which is on the first floor of the white building shown in the pictures. There are two people who work in the repair shop doing general maintenance and repair for Company cars, sometimes for independent operators and sometimes for the general public.

5. The office and repair shop staff are employees of the Company and are on the Company's payroll.

6. The Company engages fifty-five vehicle operators for the twenty-two Company owned vehicles (Company Vehicle Operators). There are also forty-one vehicle operators who are called "independents" (Independent Vehicle Operators). The Independent Vehicle Operators operate twenty-one other vehicles which are not owned by the Company but operate under the Taxi Taxi banner and are controlled by third parties ("Independent Vehicles").

7. The Company is paid a daily "flat" fee by each of the Company Vehicle Operators in the amount of $76.00 including G.S.T., when a Company Vehicle Operator takes out a taxi owned by the Company The normal "stand" fee is $283.55 weekly for each of the Independent Vehicles which operate under the Taxi Taxi banner but are not owned by the Company. The daily "flat" fee, if any, paid by the 41 Independent Vehicle Operators to the persons who control the Independent Vehicles is a matter between the Independent Vehicle Operator and the person who controls the Independent Vehicle.

8. There are two rough shifts for the Company owned vehicles. The first shift commences at approximately 4:00 a.m. and runs to approximately 4:00 p.m. and the second shift runs from 4:00 p.m. to 4:00 a.m.

9. The Company does not set shifts for the Independent Vehicle Operators.

10. There are no scheduled shifts for any of the Company Vehicle Operators. They are at liberty to show up as seldom or as frequently as they wish. The only restriction is that they cannot under Ontario Ministry of Transportation requirements work more than twelve hours in a twenty-four hour period. On any given day the Company does not know who will or who will not show up to operate a vehicle.

11. All persons, whether Company Vehicle Operators or Independent Vehicle Operators, have to be approved by Donald Wortman before they are allowed to operate a vehicle under the Taxi Taxi banner.

12. Independent Vehicle Operators pay their daily flat fee, if any, to the person who controls the Independent Vehicle.

13. All vehicle operators, that is both Company Vehicle Operators and Independent Vehicle Operators, must pay for their own fuel, but repairs and insurance are covered for them by the Company or by the person who controls the Independent Vehicle, as the case may be.

14. The Company does not pay WSIB premiums for drivers, nor does it pay CPP or Employer Health Tax in respect of drivers. See, for example, the Appendix attached from the WSIB. [Appendix Omitted]

15. The Company does not pay any vehicle operators any money whatsoever. The only money changing hands is the flat fee mentioned above.

16. There is no Occupational Health and Safety Committee at the other larger taxi company in Oshawa.

17. Company Vehicle Operators are allowed to drive for the Company, a person who controls an Independent Vehicle, or the other taxi company in Oshawa.

18. All vehicle operators are responsible for declaring G.S.T. on fares that they collect, and are responsible for their own income tax and CPP payments and/or deductions.

19. All vehicle operators pay their own tolls and tickets.

20. All vehicle operators must be licenced by the City of Oshawa and no training is provided by either the Company or the persons who control the Independent Vehicles.

21. Company Vehicle Operators are responsible for any fares lost because of non-payment by their customers, that is, the event is not a matter of Company concern.

22. There are no written contracts of employment between the Company and any vehicle operators. The Company maintains that all vehicle operators are independent contractors and that there is no verbal contract of employment with any of them.

23. Company Vehicle Operators on the day shift report at approximately 4:00 a.m., pick up keys to a Company vehicle from the office, and immediately leave to begin taking fares, either through Company dispatch, at taxi stands none of which are controlled by the Company, or by street "flags". Approximately 60% of fares for all vehicle operators are generated through dispatch.

24. At the end of the day shift the Company Vehicle Operator returns to the office, pays the flat fee, and leaves immediately. Keys are left in the car.

25. On the afternoon shift the Company Vehicle Operator goes directly to the car as directed by Wortman, or his designate, and leaves the yard to commence operations. At the end of that shift the Company Vehicle Operator pays the flat fee in the office and leaves.

26. Many Company Vehicle Operators have individualised schedules created at their own request and accommodated by the Company, i.e. they don't necessarily work the 4 to 4 hours noted above.

27. Company Vehicle Operators are at liberty to work all or part of the twelve hours in respect of which they pay a flat fee.

28. All vehicle operators, both Company Vehicle Operators and Independent Vehicle Operators must do a drive by the Company's office once per shift on the dead end street (Howard Street) in front of the window of the dispatch office to ensure that the vehicle is clean on the exterior.

29. All vehicle operators must pay for their own car washes as required.

30. Company Vehicle Operators are at liberty to work anywhere in the City of Oshawa depending on their own choice and the vagaries of the fares they accept. They are at liberty to spend as much time as they want not providing taxi services, i.e. they may stay at home or at a restaurant. The choice is their own.

31. In the event of a vehicle breakdown, or if a vehicle needs repair, the Company Vehicle Operator returns to the Company's premises for either repair or to take receipt of another vehicle. An Independent Vehicle Operator does not attend at the Company's premises other than for the purpose described in paragraph 28 above. Otherwise, there is no reason for a Company Vehicle Operator to return to the Company's premises on Bloor Street during the course of a shift.

32. All vehicle operators are subject to the overriding authority of the City of Oshawa which controls the industry and its operators and drivers through by-law, and otherwise requires all vehicles to pass a safety check twice a year. By-law inspectors for the City of Oshawa also regularly perform spot checks on drivers and vehicles to ensure compliance with all Ministry and Municipal requirements. Further, the by-law enforcement officers respond to specific consumer complaints.

33. The Company provides vehicle preference to Company Vehicle Operators who have demonstrated safe operation and care of Company vehicles over time.

34. All fares must initiate within the City limits of Oshawa. The City was broken down into ten zones by industry practice long before the Company came into existence and a vehicle operator usually indicates that he or she is operating within one of the ten zones of their own choice. Customer calls into the Company are then directed to the first available vehicle operator in the zone that the vehicle operator has chosen. There are no restrictions on the number of vehicles who are in a given zone at a given time.

35. Dispatch only communicates with all vehicle operators in respect of fares. Vehicle operators call dispatch respecting fares, vehicle breakdown, and police matters.

36. In respect of paragraph 11, the approval process takes place at a meeting with Donald Wortman at the Company's premises. Wortman assures himself that the individual has a driver's licence, an Oshawa taxi licence, a criminal record acceptable to the Company, no indebtedness to the Company or the persons who control Independent Vehicles, and no personal characteristics that would adversely affect the Company's reputation.

37. Vehicle operator turnover varies by season. In the winter there is little turnover, i.e. as little as 10%. In the summer the turnover is as much as 50%. The Company does not advertise for vehicle operators. There is an informal waiting list of persons known to Wortman who wish to become vehicle operators.

38. A City of Oshawa tariff card indicates the rates charged to customers. Otherwise, there are no signs in the taxicabs.

39. There are two bulletin boards in the offices of the Company which are used for various purposes. The only notices applicable to vehicle operators are the City of Oshawa by-law respecting taxi operation, and a Company sign indicating that vehicle operators are prohibited from using cell phones.

40. Company Vehicle Operators are not charged for damage to vehicles regardless of fault, unless the damage was intentionally caused by the vehicle operator.

41. In seventeen years of operation, the Company has never released a Company Vehicle Operator in respect of any matter relating to the manner of vehicle operation.

42. If the Company receives a complaint about any vehicle operator (either Company Vehicle Operator or Independent Vehicle Operator), Wortman, in his discretion, may review the matter with the vehicle operator. As above, no vehicle operator has ever been released as a result of a complaint. If there is a problem, Wortman discusses it with the vehicle operator.

43. There were ninety-seven registered taxi companies on the Ministry of Labour records, with at least twenty-six companies having more than twenty workers. Thirteen of those companies with more than twenty workers have a joint health and safety committee. Thirteen of those companies with more than twenty workers do not have a joint health and safety committee.

5. Counsel for the appellant submits that the appellant does not have a workplace in which twenty or more workers are employed. The appellant's premises in Oshawa has 10 people who are regularly employed there. The appellant submits that the "Company Vehicle Operators" who, it acknowledges, are workers within the meaning of the Act, should not be counted for purposes of determining whether the "twenty-worker" threshold found in section 9(2)(a) of the Act has been crossed by the appellant. The appellant also acknowledged that it was an "employer" within the meaning of the Act, but that it did not "employ" any of the Company Vehicle Operators. (The parties agreed that the Independent Vehicle Operators, although workers within the meaning of the Act, need not be considered in determining the appeal because they had less of a relationship with the appellant than the Company Vehicle Operators. If the Board were to find that the Company Vehicle Operators were employed in one workplace, then the appellant acknowledged that its appeal would have to be dismissed as there were more than 20 workers in that one workplace, with or without counting the Independent Vehicle Operators.)

6. The appellant submits that the drivers engaged by the Company do not "work" at the appellant's premises in Oshawa. Rather, the appellant submits that each of those drivers work in their own workplace, that is, they work in the vehicle they rent from the Company. Counsel argues that the definition of workplace under the Act (any land, premises, location or thing at, upon, in or near which a worker works) can only mean in this case the car in which the worker spends virtually all of his or her working time. The facts disclose, counsel for the appellant argues, that the drivers do not work (defined by the Oxford English dictionary, counsel for the Ministry of Labour submits, as meaning "the opportunity of earning money by labour") at the appellant's premises in Oshawa; rather they work in the taxicabs for which they pay a daily rental fee. Counsel for the appellant submits that the Inspector had found that the workplace where the appellant's workers, including the Company Vehicle Operators, worked was the appellant's premises at 164 Bloor St. East in Oshawa.

7. The appellant submitted that a vehicle, whether it is an automobile, aircraft or amphibious military armoured machine, can be a distinct workplace within the meaning of the Act. In Regina v. General Motors of Canada Inc., 1984 CanLII 1939 (ON HCJ), 48 O. R. (2d) 204 (Ont. H.C.) O'Driscoll J. held that although an amphibious vehicle, while in the water was a vessel or a ship under the Canada Shipping Act, it was also "workplace" within the meaning of the Act whether it was on land or water. The issue arose in that case on a motion by the employer to quash a decision of a Provincial Court Judge finding that the Province of Ontario had the jurisdiction to charge the employer with an offence under the Act. General Motors of Canada Inc. had claimed that the Act did not apply to the amphibious vehicle two of its employees were operating on Lake Erie when it sank resulting in the loss of life of one its employees. A similar result obtained in Hyland v. The Crown in Right of Ontario, unreported, February 25, 1991, Q. L. cite [1991] O.J. No. 655 (Gen. Div.) in which Abbey J. held that an air ambulance came within the definition of "workplace" found in the Act. Thus, counsel argues, if an amphibious vehicle and an aircraft can each be a "workplace" within the meaning of the Act, then so can a taxicab. Indeed, the appellant argued in this case that the taxicab, rather than the Company's premises, provided the best fit for the definition of workplace. Counsel submits that the taxicab is a "…thing…in which a worker works." Furthermore, the appellant submits that the workers engaged as drivers by the appellant do not work in, on, at or near the premises, land or location of the appellant at Bloor St. East in Oshawa. Therefore, while those premises certainly constitute a workplace for the office and garage employees of the appellant, they are not the workplace of the drivers.

8. Counsel for the Ministry did not dispute that each of the vehicles in which the drivers worked could constitute a workplace. He argued however, that the workplace need not be stationary, but that the appellant may be responsible for several workplaces, which, when taken together, can constitute a single workplace for the purposes of section 9(2)(a) of the Act. He pointed out that if the appellant was correct, people who are employed as drivers would be deprived of the opportunity to raise common safety concerns through the joint health and safety committees established to deal with those kinds of concerns. If each taxicab were considered a separate and distinct workplace, safety issues such as the mechanical condition of the vehicles could only be raised by drivers through a prosecution alleging that the employer had violated section 25(1)(b) of the Act. The drivers of those taxicabs would not be permitted to be on a joint health and safety committee because a committee only relates to a particular workplace. Counsel argued that if a worker is no longer employed in that workplace, that worker is not permitted to remain on the committee established for the workplace and referred to section 9(10) of the Act. Counsel for the Ministry argued that the Board should resist an interpretation of the Act which would lead to initiating prosecutions. He urged an interpretation that would support the internal responsibility system in which health and safety issues can be raised in a joint committee forum where the parties are collegial and co-operative rather than in a judicial forum where the parties are adversaries. Counsel argued that a prosecution should be the last resort because the Act encourages voluntary compliance through the internal responsibility system, of which the joint health and safety committee is an integral element.

9. Counsel for the Ministry argued that where workers report to and work at or out of different locations, then each of those locations can constitute a separate workplace. But where, as here, the employer has a single location where the workers come to pick up and return their vehicles and pay their fees for the use of those vehicles, then that location can be seen as the focus of the workers' relationship with their employer and should therefore constitute the workplace for the purposes of section 9(2) of the Act. Counsel referred to Porcupine Health Unit, unreported decision of the Director, June 1, 1982, in which the Director found that the field staff of the health unit were workers employed at a workplace as they were "employees, working at or from a workplace" (paragraph 6). Counsel for the Ministry did acknowledge that the definition of "workplace" in the Act makes reference to workers working "at, upon, in or near" a location but does not refer to workers working "from" a location. Furthermore, the Director's decision in the Porcupine Health Unit case makes no reference to the definition of "workplace" found in the Act. In my view, that decision is of little assistance in determining this matter.

10. In Saxon Athletic, Office of Adjudication, December 16, 1996, unreported, Q.L. cite [1996] O.O.H.S.A.D. No. 55, the adjudicator, on a motion to suspend an order requiring the establishment of a joint health and safety committee, considered the usual criteria for granting a suspension and concluded, in determining whether a joint health and safety committee was required in a workplace in which more than twenty workers worked, that the employer against whom the order was issued had made out a strong prima facie case. While there was one location in which there were thirty-four workers, there were three different employers operating in that one location. The employer against whom the order was issued employed only nineteen workers. In finding that the employer had a strong prima facie case, the adjudicator wrote at paragraphs 9 and 10:

9. I am not aware of any cases addressing the question of whether "workplace" can be interpreted to include the employees of more than one employer (outside the construction project provisions). It is an interesting question. My reading of section 9 suggests that the scheme of joint health and safety committees assumes that all the members work for a single employer, but perhaps a more creative approach can be articulated. On the other hand, I would be concerned about an interpretation of "employer" and "workplace" in section 9 that would permit an employer to artificially split its workers among a number of companies to keep the number of workers below 20 at any one company, and thus seek to avoid its obligations under section 9.

10. However, I have difficulty with Mr. Alchuk's argument that it is only the number of people in the workplace that is relevant to a determination of certification requirements. To think of an absurd example, a downtown office tower with multiple offices, and hence multiple employers and workers could be a workplace, but it is contrary to common sense to think that there could be one joint committee for the entire building, and two certified members. While one employer can have many workplaces, can one workplace have more than one employer? That is the issue, and I am reluctant to decide such an important question on the basis of written submissions in an application for a suspension. However, I believe that Saxon Athletics has made out a strong prima facie case that it will succeed on the merits, if it can prove, as it asserts, that only 19 of the workers in the work place are its employees.

The parties advised me that they were unable to find the decision (if there was one) on the merits of the appeal in that case.

11. I also accept that one employer can have many workplaces. Counsel for the Ministry submits that the many workplaces of the appellant should be considered as elements or parts of one larger workplace for purposes of section 9(2)(a) of the Act. I understood counsel's argument to be that therefore, in this case, even though each taxicab may be a workplace, the central location from where the taxicabs are dispatched is also a workplace. The significant and important connection among those vehicles (operating as a single entity through a dispatch system) suggests that they, together with the central location, constitute one workplace for purposes of section 9(2)(a) of the Act.

12. Counsel for the appellant provided me with the decision of the Office of Adjudication in Brewers Retail Inc., unreported, May 19, 1995, Q.L. cite [1995] O.O.H.S.A.D. No. 20, in which the adjudicator was required to determine whether a retail beer store and a wholesale warehouse, which the employer conceded was a single operation for the purposes of section 9 of the Act, was a workplace at which twenty or more workers were regularly employed. The employer submitted in that case that three workers (if they were not counted would reduce the number below twenty) did not spend a majority of their working time at the location and therefore were not regularly employed at that workplace. The adjudicator, in dismissing the appeal, appeared to rely on policies established by the Ministry of Labour that deal with "dispersed workplaces". The adjudicator wrote at paragraphs 26 to 28:

26. A dispersed workplace is commonplace for travelling salespersons, homecare workers and nurses, truck and bus drivers, and most temporary contract worker agencies. These workers normally have a home base to which they report for instructions, assignments, and payroll. Little or no time may be spent by them at the home base, working or otherwise; it is the very nature of these workplaces that most of their actual work will be performed on the road or at a different site. Ministry policy says, nonetheless, that these individuals should be included in the committee count for the home base. I agree. Short of denying these workers the right to participate in committees, I can see no other way to deal with the issue.

27. The Employer's warehouse, in the present case, is an example of a dispersed workplace in two senses. A number of the workers associated with the warehouse are drivers and driver helpers. They were responsible for delivering beer to various registered customers in the Sarnia area. And while no evidence was led respecting the amount of time they spent in the warehouse proper, as opposed to being 'on the road', it is likely that this could have been an issue before me. Despite that, and quite reasonably to my mind, the Employer has not attempted to suggest that the drivers should not be counted. The second group of dispersed workers are, of course, the three men in dispute. I can see no reason, short of abandoning the dispersed workplace principle, for not including them in the count for the warehouse. In addition to working there a significant portion of their time, it is clearly their home base.

28. Finally on this point, and inextricably related to the dispersal issue, the fact that the Employer listed the warehouse as the workplace of these three employees for assignment, payroll and presumably other purposes is significant. It seems only reasonable that the Employer's own organizational structure would be probative of the way in which workers should be aggregated for the count, given that a health and safety committee can be characterized as a statutorily imposed organizational requirement.

Counsel for the appellant submitted that the adjudicator was wrong in the Brewers Retail Inc. case because he appeared to rely on Ministry policy and the potential prejudice to those workers who are associated with "dispersed workplaces" rather than examining the statutory definition of workplace. Counsel for the Ministry submitted that the adjudicator in Brewers Retail Inc. correctly set out the appropriate approach to determining this issue. He also pointed out that the logical conclusion of the appellant's argument would lead to a situation where large numbers of workers, described in the Ministry's policy concerning dispersed workplaces, would be stripped of the right to participate in and have their health and safety concerns raised in joint health and safety committees. The definition of workplace, counsel for the appellant submits, is a single identifiable place or thing "at, upon, in or near which a worker works". Furthermore, section 9(2)(a) of the Act requires a joint health and safety committee in respect of a single workplace where more than 20 workers are "regularly employed". The section does not envision a committee for a group of workplaces, or for workers at more than one location being considered a single group for purposes of meeting the minimum established by section 9(2)(a). Counsel also argued that although the Ministry's policy objectives that the adjudicator in Brewers Retail Inc. adopted and applied may be laudable, section 9(2) does not refer to a workplace "from" which workers work. That section also does not refer to more than one workplace of an employer.

13. Counsel for the appellant also submitted that his analysis of the obligation imposed by section 9(2)(a) of the Act was directly related to the second element of his argument based on the relationship between the worker and the employer. In essence, counsel argued that section 9(2)(a) requires an "employment" relationship between the employer and the worker. In other words, the worker must be an "employee" of the employer before he or she can be counted for purposes of determining whether the twenty-worker threshold has been crossed in a particular workplace. He argued that the relationship between the Company Vehicle Operators and the Company was not even close to one of employment. Rather, given the minimal control exercised by the Company, the complete freedom they enjoyed to do what they wished during their shifts so long as they paid their fee for the use of the vehicle and their ability to work or not work on any given day suggested that on the spectrum of relationships ranging from one of hourly paid employment in an employer's plant to an independent contractor providing services to a variety of different customers, Company Vehicle Operators were much closer to the independent contractor end of the spectrum.

14. Counsel for the Ministry submitted that the expansive definition of employer under the Act suggests that the concept of "employ" must be taken from the definition of "employer" and would therefore encompass more than just a classic "employment" relationship. The statutory definitions of worker and employer deal with both "employment" and contractual relationships for the provision of work or services by an independent contractor. Thus, counsel argued that even if the Company Vehicle Operators were not viewed as employees but rather as contractors, their relationship with the Company was an "employment" relationship because they were workers and the Company was their employer. That is, those drivers were "workers" who were "employed" as that term is used in section 9(2)(a) of the Act. In the alternative, counsel for the Ministry submitted that the Company Vehicle Operators were employees of the Company in law.

15. At the conclusion of the Ministry's argument, I did not require the appellant to address the alternative argument made by counsel for the Ministry with respect to the status of the Company Vehicle Operators. The Ministry pointed out that all drivers must be approved by the Company, (item 11 of the agreed facts), all drivers are supplied with vehicles and do not pay to maintain them (item 13 of the agreed facts), Company Vehicle Operators may, in the discretion of the Company, be provided with a vehicle of their choice (item 33 of the agreed facts), all drivers obtain some work through the Company's dispatch system (item 23 of the agreed facts), drivers may be released, although none had been released for reasons relating to the manner in which they operated a vehicle (item 41 of the agreed facts), the Company meets with any drivers about whom a complaint has been made to review their behaviour (item 42 of the agreed facts) and the drivers shifts are fixed by the Company (items 8 and 23 of the agreed facts). In my view, the absence of virtually any control over the work location or work hours of the drivers is significant. They are more akin to entrepreneurs who pay a daily rental for the equipment they need to earn income. They are free to work or not work as they see fit whenever they take a car from the Company. Where they drive to pick up fares (within the City of Oshawa) is up to them. They are free to decide whether to work or not work on any given day or any given shift and if they choose not to work, there do not appear to be any consequences (other than they do not earn any income). Finally, none of the conventional indicia of an employment relationship (regular wages paid by the employer, obligations to report and perform work during scheduled work hours, statutory deductions and remittances) existed in respect of the Company Vehicle Operators. Therefore, I was satisfied that the Company Vehicle Operators were not employees of the Company. They are workers within the meaning of the Act who have a relationship with the Company, which is an employer within the meaning of the Act.

16. Section 9(2)(a) of the Act requires a joint health and safety committee be established "at a workplace at which twenty or more workers are regularly employed". In my view, I must first determine whether the Company Vehicle Operators were "employed" within the meaning of section 9(2) of the Act. If they were employed, then I must determine the nature of their workplace. In order to make that first determination, it is necessary to consider the scheme of the Act and the definitions and provisions of the Act relating to joint health and safety committees.

17. The statutory definitions of "employer" and "worker" under the Act were carefully reviewed by the Ontario Court of Appeal in Regina v. Wyssen, 1992 CanLII 7598 (ON CA), 10 O. R. (3d) 193 in which the court determined that a window cleaning contractor who had subcontracted work to another window cleaning contractor (who was killed when his equipment failed) was an employer under the Act and in respect of that subcontractor was subject to the obligations imposed by sections 14(1)(c) and 14(2)(g) [now 25(1)(c) and 25(2)(h)] of the Act on employers. Sections 25(1)(c) and 25(2)(h) provide:

25(1) An employer shall ensure that

(c) the measures and procedures prescribed are carried out in the work place;

25(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(h) take every precaution reasonable in the circumstances for the protection of a worker;

The court had found that the deceased subcontractor was an independent contractor who supplied his own equipment and worked without supervision. Nevertheless, the accused was an employer and the deceased contractor was a worker within the meaning of the Act. Blair, J.A. for the majority of the court, wrote at page 196-97:

The definition of "employer" in the Act covers two relationships: firstly, that of a person who employs workers and secondly, that of one who contracts for the services of workers. The difference between the two relationships is well established by authority. Formerly, a "contract of service" referred to the employer-employee relationship and a contract for services referred to the relationship between an employer and an independent contractor. In 16 Halsbury's Laws of England, 4th ed. (1976), para. 501, p. 313, it is stated that:

The law distinguishes between a contract of service and a contract for services, and correlatively, between an employee and an independent contractor.

The phrase "contract of service" does not appear in the definition of employer in the Act having been replaced by the contemporary description of "contract of employment" as explained in 16 Halsbury's Laws of England, 4th ed. (1991 reissue) para. 1, note 4, p. 8:

Although historically employment law originated in what was termed the law of master and servant, the modern terminology adopted is that of "employer" and "employee"; and a "contract of employment" is used rather than the older phrase "contract of service", save that the latter phrase is still used in social security and related legislation. An individual in business on his won account is known variously as an independent contractor or self-employed person; and traditionally it has been said that such a person works under a contract for services rather than a contract of employment or a contract of service.

The statutory definition of "employer" includes a contractor or a subcontractor who performs work or supplies services or who undertakes to do so. It permits the devolution of work by contractors and puts the contractor in the position of an employer with respect to his subcontractor which was precisely the relationship between the respondent and the deceased in this case.

The definition of the word "worker" applies equally to employment or independent contractor relationships. It does not, for example, restrict the applicability of the statute to contracts of employment as it might have done if the word "employee" and not the word "worker" had been used as the correlative to the word "employer".

It is clear that the obligations imposed on an employer by section 25 of the Act apply to an employer whether the employer has employees or retains the services of independent contractors. It is a person's status as an employer under the Act that creates the obligation which that person has as an employer to ensure a safe workplace. As the court noted, the broad definition of employer under the Act results in a person who comes within the definition of employer having the obligation to ensure that the workplace is safe and that reasonable precautions are taken to protect all workers in a workplace, without distinguishing between the workers who are employees and the workers who are independent contractors.

18. Section 9 differs significantly from section 25 because, unlike section 25, section 9 in subsection 9(2) explicitly refers to a workplace at which workers are regularly employed for there to be an obligation on an employer or constructor, as the case may be, to establish and maintain a committee. Also, sections 9(7) and 9(10) mandate the composition of the committee by reference to workers employed at the workplace. Furthermore, the definition of employer, which provides in part: "'employer' means a person who employs one or more workers or contracts for the services of one or more workers" does specifically refer to both an employment relationship and an independent contractor relationship. Thus, it is clear from the selection of the word "employs" in the definition of the term "employer" that the legislature used the word "employ" when it wanted to refer to an employment relationship with workers and used the words "contracts for the services of" when it wanted to refer to an independent contractor relationship with workers. I am of the opinion that when the Act uses the word "employ" it refers to a traditional employment relationship. When obligations under the Act are meant to encompass both employment and independent contractor relationships the word "employ" is not used. Rather, such obligations are imposed on employers in respect of workers without referring to the relationship between the employer and the worker.

19. It appears to me that the mandatory committee structure imposed by section 9(2)(a) is consistent with an environment in which an employer has regular employees who perform work in its workplace. That is reinforced by the mandated composition of the committee imposed by sections 9(7), 9(9) and 9(10) and by the mandatory time off for meetings and payment obligations imposed by sections 9(34) and 9(35) of the Act. At least half of the members of the committee must be made up of workers who are employed in the workplace and those employed workers must be paid their "regular or premium rate" by their employer when engaged in committee functions.

20. I am of the opinion that if the legislature had intended that a joint health and safety committee must be established in a workplace where 20 or more workers regularly work regardless whether 20 or more workers are regularly employed at that workplace, it would have been a simple matter to have used the word "work" instead of the word "employ" in section 9(2)(a) as the legislature did when defining "workplace". Indeed, the definition of workplace, set out earlier, makes reference to a place "at, upon, in or near which a worker works". Obviously, the definition of workplace encompasses a location where both employees and independent contractors perform work. That definition may then be usefully compared with section 9(2)(a) of the Act which refers to a workplace at which workers are employed. I am therefore satisfied that section 9(2)(a) does not require that a joint health and safety committee be established at a workplace which does not have workers employed there.

21. Although section 9(2)(a) does not, in my view, require an employer who does not employ workers in a workplace to establish a joint health and safety committee, section 9(3) of the Act does permit the Minister to order an employer or constructor to establish and maintain a joint health and safety committee where sections 9(1) and 9(2) do not require a committee. Section 9(3) provides:

Despite subsections (1) and (2), the Minister may, by order in writing, require a constructor or an employer to establish and maintain one or more joint health and safety committees for a workplace or a part thereof, and may, in such order, provide for the composition, practice and procedure of any committee so established.

Section 9(3) notably does not require that workers be employed at the workplace before the Minister can order the establishment of a joint health and safety committee.

22. I am satisfied that section 9(2)(a) of the Act requires the establishment of joint health and safety committees at workplaces where workers are employed, not at workplaces where the only workers who are performing work or providing services are under a relationship that is not an employment relationship. I do not, in this decision, purport to determine whether a committee established under section 9(2) in a workplace where both employed workers and independent contractor workers perform work represents all workers or just employed workers or the role, if any, workers who are not employed may have in determining the worker representative on the committee. Where a joint health and safety committee is deemed necessary in a workplace in the absence of the requisite number of employed workers, the Minister has the power under section 9(3) of the Act to require the establishment of a committee and may determine the composition of that committee without limiting eligibility to only employed workers.

23. As I have concluded that the appellant did not have twenty or more workers employed at the workplace which the Ministry alleged was appellant's premises in Oshawa, there is no need me for me to determine whether those premises constituted the workplace as asserted by the Ministry or whether each individual taxicab was the workplace as asserted by the appellant for the purposes of section 9(2)(a) of the Act.

24. The appeal is allowed. The inspector's order issued on August 10, 1999 in F.V. No. 885980 is hereby rescinded.

"Harry Freedman"

for the Board