Court File and Parties
Citation: 2517906 Ontario Inc. v. Ontario Labour Relations Board, 2023 ONSC 4890 Divisional Court File No.: 529/22 Date: 2023-08-31
Ontario Superior Court of Justice – Divisional Court Sachs, Backhouse and Schabas JJ.
Between:
2517906 Ontario Inc. o/a Temporary Personnel Solutions Applicant
– and –
Ontario Labour Relations Board and the Director of Employment Standards Respondents
Counsel: Priya Sarin and Allyson Lee, for the Applicant Aaron Hart, for the Ontario Relations Board Evan Schiller and Tyler Fram, for the Ministry of the Attorney General
Heard: by videoconference at Toronto: August 23, 2023
Reasons for Decision
Backhouse J.
Overview
[1] The Applicant, Temporary Personnel Solutions (“TPS”) seeks review of a decision of the Ontario Labour Relations Board (“the Board”) dated August 18, 2022, affirming Order to Pay No.80082422-OP issued by an Employment Standards Officer. The Order to Pay relates to the wages of twelve individuals assigned to work on a temporary basis at Van Egmond & Sons Greenhouse (“Van Egmond”), a wholesale florist in April and May of 2019. The Board found that TPS was a temporary help agency (“THA”) and the employer of these individuals pursuant to s.74(3) and s.1.1 of the Employment Standards Act, 2000 (“the Act”)[^1]; that TPS had failed to establish they were paid; and that TPS is therefore liable for their wages.
[2] TPS asserts that the true employer and the entity that should be held liable for any owing wages was a “subcontractor” it refers to as “the CBH agency”.
[3] TPS submits that there were three significant errors in the Decision rendering it unreasonable:
the Board interpreted sections 74.3 and 1.1 of the Act in an overly broad, purpose driven manner and failed to apply the plain and ordinary meaning of s.74.3 that required a direct relationship between employer and employees for an employment relationship to exist;
it erroneously found the subcontractor was not a legitimate enterprise and was neither a THA nor an employer of the twelve individuals within the meaning of the Act; and
it disregarded the common law test for determining who the employer was in a tripartite relationship.
[4] TPS further submits that the Decision was unreasonable because it did not consider the potential impact on the temporary help industry whereby THAs can be deemed to be employers to unknown workers when contracting with separate legal entities.
[5] For the reasons set forth below, the application is dismissed.
Background
[6] TPS was a THA that was incorporated and began operating in 2016. TPS maintained its own core employees which it deployed as assignment workers to its agricultural and manufacturing clients. TPS also substantially relied on assignment employees dispatched by subcontractors to meet the staffing needs of its clients. The Board found this to be a normal and prevalent practice in the THA industry.
[7] Not long after TPS began operating, one of its corporate directors, Christopher Gorman, became acquainted with Mr. Tieu. Mr. Tieu claimed to represent several “subcontractors”, including Chot Bun Hov, Chantrea Keon and Jaida Devon Jones, all of whom apparently operated out of 65 Century Street in Hamilton.
[8] Mr. Tieu provided Mr. Gorman with documents related to Chot Bun Hov’s supposed business, and in the Spring of 2017, TPS entered a “Secondary Supplier Agreement” with Mr. Tieu, who purported to enter into the agreement on behalf of Chot Bun Hov. On January 2, 2019 a further agreement, titled an “Independent Contractor Agreement”, was entered into with Mr. Tieu, purportedly on behalf of Chot Bun Hov.
[9] According to the Master Business Licence and other documents provided by Mr. Tieu to TPS, Chot Bun Hov was a sole proprietor. Despite this Chot Bun Hov himself was not present during any of the discussions leading to the initiation of the business relationship with TPS. No one from TPS ever met or even sought to meet Chot Bun Hov during the several years the company did business with Mr. Tieu.
[10] The phrase “CBH Agency” which TPS used to characterize Mr. Tieu’s activities under the banner of Chot Bun Hov is not a registered business name or referenced in any of the documents Mr. Tieu provided to TPS. Other than Chot Bun Hov himself, whom the Board determined “clearly was not directing the business that bore his name”[^2], TPS has not identified the legal entity—individual or corporation—that it refers to as the “CBH Agency.”
[11] The agreements that TPS signed with Mr. Tieu on behalf of Chot Bun Hov characterized the “subcontractor” as the employer of its employees and held it responsible for recruitment, selection, deployment to TPS’s customers, and for maintaining personnel and payroll records. However, as set out below the Board found that there was no evidence led during the hearing to suggest that Mr. Tieu or any of the alleged “subcontractors” he represented performed any of these functions in relation to the workers they dispatched.[^3]
[12] Mr. Chot testified before the Board that the CBH subcontractor was never a business operated by him. Contrary to the Master Business Licence that he helped Mr. Tieu obtain, Mr. Chot never operated a sole proprietorship or engaged in the business activity of “farm labour supply”. Rather, at Mr. Tieu’s prompting, and in return for $10,000 spread out over several installments, Mr. Chot simply agreed to act as a sort of front for the business, providing Mr. Tieu with his Social Insurance Number, cooperating with Mr. Tieu to obtain documentation, such as the Master Business Licence in order to set up as a business under Mr. Chot’s name and setting up a bank account and providing Mr. Tieu with signing authority. According to Mr. Chot, he was in debt and needed the money Mr. Tieu was offering. However, Mr. Chot had nothing to do with hiring or deploying employees or maintaining business relations with TPS. Mr. Tieu did not testify.
[13] The Board found that Mr. Tieu’s claims and the documents provided “were not a reasonable foundation upon which to conclude that Subcontractor CBH was a legitimate enterprise with whom TPS might enter into an arm’s length business relationship”.
[14] On April 15, 2019, Van Egmond entered into a Staffing Services Agreement (“SSA”) with TPS which stated that the workers assigned to Van Egmond would be employed by TPS, not a subcontractor. The Board noted “nowhere in the SSA does Van Egmond expressly authorize the use of third-party workers. Nowhere in the SSA does TPS expressly reserve to itself the right to supply third-party workers.”[^4]
[15] As the relationship between TPS and Van Egmond was short-lived, the Board also heard from representatives of three significant client businesses of TPS, Marwoood International Inc., Hendriks Greenhouses and Freeman Herbs. TPS supplied workers to each of these businesses dispatched by Mr. Tieu under the guise of Chot Bun Hov and the three businesses entered into similar SSAs with TPS where it was agreed that TPS would be the employer of the workers assigned to the businesses. The Board found that neither Van Egmond nor the three other client businesses had any understanding that TPS was utilizing what it considered to be a “subcontractor” to supply assignment employees[^5] to their businesses.
[16] Except in the case of Marwood, which preferred to create its own timesheets, assignment employees including those in issue in this application signed in and out on timesheets which were provided to the client businesses by TPS and adorned prominently with its logo, without distinguishing between TPS’s core employees and those dispatched by Mr. Tieu.[^6]
[17] Despite TPS’s assertion at paragraph 18 of its factum that it did not deal with workers dispatched by Mr. Tieu under the banner of Chot Bun Hov, the Board found that TPS’s representatives, including Mr. Gorman, Julia Grandmond and Gary Harrison, attended client sites at the beginning of shifts as necessary to ensure that Mr. Tieu had dispatched the correct number of assignment employees, to check the employees in and to direct them to their work location.[^7] Ms. Grandmond conducted random spot checks of the workers dispatched by Mr. Tieu at client sites. When conducting such checks, she spoke to the workers, checked their identities, and inquired if they were being treated and paid properly. Ms. Grandmond also occasionally brought lunch to client sites for the workers dispatched by Mr. Tieu.[^8]
[18] Despite supplying assignment employees for multiple years to TPS clients like Marwood, Hendriks and Freeman, there was no evidence led as to Mr. Tieu ever having appeared at a single client site. The only persons who attended at the location of TPS’s clients and interacted with the dispatched workers were TPS’s representatives, namely Mr. Gorman, Mr. Harrison, and Ms. Grandmond.[^9]
[19] Contrary to TPS’s suggestion at paragraph 19 of its factum, the Board found that when a client business had an issue or concern with the conduct of an assignment employee supplied by TPS through Mr. Tieu, they called TPS. Rather than referring the client to the “subcontractor” agency, TPS would take it upon itself to resolve the issue with the client. When at the outset of the investigation an entire shift of assignment employees dispatched to Marwood by Mr. Tieu walked off the job, TPS did not assign the blame to the “subcontractor”. It rectified the issue itself and credited Marwood for the lost time, without seeking compensation from Mr. Tieu.[^10]
[20] Contrary to TPS’s position that Mr. Tieu was operating as an arm’s length “subcontractor”, TPS itself created the invoices for the “CBH Agency” for the employees supplied by Mr. Tieu. TPS used its employee timesheets to create invoices addressed to itself and allowed Joanne Tieu (thought to be Mr. Tieu’s spouse) an opportunity to verify the numbers. TPS would then issue a cheque to Chot Bun Hov based on the invoice that TPS had created. This practice occurred not only for the “CBH Agency” but during the entire course of TPS’s reliance on Mr. Tieu to dispatch workers to its clients. The Board found that it did not make sense for the payor, TPS, to prepare the bills that it must eventually pay to the payee and this practice likely existed because the subcontractors did not have a business infrastructure of their own.[^11] Chot Bun Hov never received any of the cheques issued by TPS for the provision of labour.[^12]
[21] TPS’s alleged “subcontractors”, including Mr. Tieu under the guise of Chot Bun Hov, were not involved in any way in negotiating and had no input into the terms of the Staffing Services Agreements TPS entered with its clients. As the Board observed, “TPS was the entity entitled to negotiate the relevant terms of its Staffing Services Agreements with its clients, including the wage rates for which the client would be billed, hours of work, the type of work to be performed, and the term of the assignments (if any).” By setting these terms, TPS not only established the working conditions for any of its core employees assigned to the client site, but also any workers dispatched by Mr. Tieu.[^13]
[22] Further, the Board found that the evidence led regarding the relationship between “the CBH Agency” and the individuals TPS alleges CBH employed was “scant and superficial”. None of the witnesses who testified had any direct knowledge that would allow them to speak to this alleged employment relationship.[^14] For all the Board knew, “Tommy Tieu may have approached individuals on the street with offers of work and deployed or escorted them to TPS’s clients.”[^15]
[23] The Board found that TPS was not “up front” about utilizing “subcontractors” to supply assignment employees to their businesses, and the “preponderance of the evidence – the SSAs, the presence of TPS representatives on site, the intervention of TPS to sort out the occasional problems between their clients and the subcontract workers - suggests that TPS wanted its clients to believe that it was in control of the workers and directly accountable for their conduct and performance.”[^16]
[24] In light of the above, the Board concluded the supposed “CBH Agency” was neither a THA nor an employer as defined by the Act. The evidence disclosed only that Mr. Tieu was dispatching workers to TPS’s clients under terms and conditions set by TPS itself. The evidence did not establish that Mr. Tieu or any of the “subcontractors” associated with him had any clients of their own, that they exercised any control over the individuals TPS alleges were their employees, or that they were even legitimate business enterprises at arm’s length from TPS.[^17]
[25] As the Board concluded, far from establishing that the individuals in question were employed by a “subcontractor”, at best the evidence established that Mr. Tieu “arranged for the reporting of the workers to the locations on the direction of TPS”.[^18] The Board found that in dispatching workers to TPS’s’ client, Mr. Tieu, or Chot Bun Hov whom he claimed to represent, was not a subcontractor THA.[^19] No business by the name of the “CBH Agency” was found to exist by the Board. The Board concluded that TPS was both a THA and employer of the twelve workers as defined by the Act.
Standard of Review
[26] The parties agree that the standard of review is reasonableness.
[27] Turkiewicz (Tomasz Turkiewicz Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, is a recent Ontario Court of Appeal decision where the Court considered the Divisional Court’s decision to quash three decisions of the Board made under the Labour Relations Act, 1995. The Court highlighted that Vavilov[^20] requires that the expertise of the decision maker be borne in mind when conducting a reasonableness review:
I would add that the reviewing court must bear in mind the expertise of the administrative decision maker with respect to the questions before it. At para. 31 of Vavilov, the Supreme Court states that “expertise remains a relevant consideration in conducting [a] reasonableness review.” Being attentive to a decision maker’s demonstrated expertise may reveal to a court why a decision maker reached a particular outcome or provided less detail in its consideration of a given issue (para. 93). Moreover, decision makers’ specialized expertise may lead them to rely, when conducting statutory interpretation, on “considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise” (para. 119). As such, relevant expertise of the administrative decision maker must be borne in mind by a court conducting a reasonableness review, both when examining the rationality and logic of the decision maker’s reasoning process and the decision itself, in light of the factual and legal constraints bearing on it.[^21]
[28] The ONCA went on to explain that the “OLRB is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.”[^22] The same applies with respect to the Act.
[29] A court reviewing a question of statutory interpretation – such as in the instant application for judicial review – must be careful to not “conduct a de novo interpretation nor attempt to determine a range of reasonable interpretations against which to compare the decision of the administrative decision maker.”[^23]
The Key Statutory Provisions
[30] As noted in the Decision, this case brings into play various provisions of the Act. Part I of the Act sets out terms used throughout the statute and the meaning of those terms. Subsection 1(1) defines “employer”, “temporary help agency”, “assignment employee” and “client” in the following terms:
“employer” includes,
(a) an owner, proprietor, manager, superintendent, overseer, receiver or trustee of an activity, business, work, trade, occupation, profession project or undertaking who has control or direction of, or is directly or indirectly responsible for, the employment of a person in it, and
(b) any person treated as one employer under section 4, and includes a person who was an employer;
“temporary help agency” means an employer that employs persons for the purpose of assigning them to perform work on a temporary basis for clients of the employer;
“assignment employee” means an employee employed by a temporary help agency for the purpose of being assigned to perform work on a temporary basis for clients of the agency;
“client”, in relation to a temporary help agency, means a person or entity that enters into an arrangement with the agency under which the agency agrees to assign or attempt to assign one or more of its assignment employees to perform work for the person or entity on a temporary basis;
[31] Under Part XVIII.1 of the Act, which deals exclusively with temporary help agencies, the following sections are relevant:
74.2 For the purposes of sections 5, 102 and 102.1, Part XXVII (Regulations) and such other sections of this Act as may be prescribed insofar as matters concerning this Part are concerned,
“employee” means an employee as defined in subsection 1 (1) and includes a prospective assignment employee or a prospective employee who engages or uses the services of a recruiter to find employment in Ontario; (“employee”)
“employer” means an employer as defined in subsection 1 (1) and includes a client of a temporary help agency, a recruiter or a prospective employer who engages or uses the services of a recruiter to find or attempt to find an employee. (“employer”) 2021, c. 35, Sched. 2, s. 11.
74.3 Where a temporary help agency and a person agree, whether or not in writing, that the agency will assign or attempt to assign the person to perform work on a temporary basis for clients or potential clients of the agency,
(a) the temporary help agency is the person’s employer;
(b) the person is an employee of the temporary help agency. 2009, c. 9, s. 3.
74.18 (1) Subject to subsection (2), if an assignment employee was assigned to perform work for a client of a temporary help agency during a pay period, and the agency fails to pay the employee some or all of the wages described in subsection (3) that are owing to the employee for that pay period, the agency and the client are jointly and severally liable for the wages. 2014, c. 10, Sched. 2, s. 5.
Issues
[32] This application raises the following issues:
Did the Board reasonably conclude that TPS was the “employer” of the affected workers under s.74.3 of the Act?
In the alternative did the Board reasonably conclude that TPS was the “employer” of the affected workers under s.1(1) of the Act?
Did the Board reasonably find that the subcontractor was not a legitimate enterprise and was neither a THA nor an employer within the meaning of the Act?
Did the Board err by disregarding the common law test for determining who the employer was in a tripartite relationship? and
Was the Decision unreasonable because it did not consider the potential impact on the temporary help industry?
Issue 1: The Board reasonably concluded that TPS was the “employer” of the affected workers under [s.74.3](https://www.canlii.org/en/on/laws/stat/so-2000-c-41/latest/so-2000-c-41.html#sec74.3_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/so-2000-c-41/latest/so-2000-c-41.html)
[33] TPS submits that the Board has interpreted s.74.3 of the Act in an overly broad purpose driven manner, contrary to the plain language of the section and thereby reverse-engineered the outcome.
[34] In concluding that a broad and liberal interpretation of the THA provisions of the Act was appropriate the Board stated:
The purpose of Part XVIII.1 of the Act is to set out specific obligations and prohibitions relating to THAs and their clients, and specific rights of assignment employees of THAs. By recognizing employment with THAs as a unique type of employment relationship, the provisions under this Part of the Act aim to confer upon assignment employees the same substantive rights as other employees working for more traditional employers in Ontario.
As the Supreme Court of Canada observed at page 1003 in Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 SCR, the objective of the Act generally is to “protect the interest of employees”, and that accordingly the Act is to be interpreted to “encourage employers to comply with the minimum requirements” of the Act and to “extend its protections to as many employees as possible.” And at paragraph 26 in Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 SCR 27, the Supreme Court of Canada characterized the Act as “benefits-conferring legislation” that should be interpreted in “a broad and generous manner”, and further, that “[a]ny doubt arising from difficulties of language should be resolved in favour of the claimant”.
Recently, the Board applied these principles in Jose Evelio Carranza operating as Carlos Farms Services v. Anna Woelke, 2022 12309 (ON LRB), a case in which the central issue was whether Carlos Farms Services (“Carlos Farms”) was a temporary help agency. Carlos Farms took the position that it was not the employer of the assignment employees because, among other things, it had no written agreements with the workers; it did not pre-screen the workers; it had no obligation to find work for any given worker, nor did it actively search for work opportunities on behalf of any given worker. Rather, individuals would contact Carlos Farms daily seeking work for themselves and sometimes also for friends and family members. Assignments were then offered by Carlos Farms on a “first come, first serve” basis. The Board found that Carlos Farms was a THA and that the workers it assigned were assignment employees. In arriving at this conclusion, the Board canvassed the Supreme Court of Canada decisions referred to in the previous paragraph above, and commented:
Similarly, the Board should strive to interpret the THA Provisions specifically with a view to promoting its legislative purpose. Employees of THAs are traditionally engaged in vulnerable and precarious employment that is often incongruent with the traditional characteristics of an employment relationship under the Act and at common law. In my view, the object and purpose of the THA Provisions are to extend the benefits and protections of the Act enjoyed by individuals engaged in traditional forms of employment to employees of THAs – a segment of the workforce that had been historically excluded from its reach. The THA Provisions constitute “benefits-conferring legislation” that is designed to protect the interests of assignment employees and should be interpreted in a broad and generous manner so as to achieve that objective.
[35] TPS submitted that having regard to the plain and simple language of section 74.3 of the Act, for TPS to be the employer, there must be a direct agreement between the worker and TPS that TPS will assign the worker on a temporary basis to perform work for its clients and on the facts of this case there was no such agreement. This submission was considered by the Board and rejected.
[36] Section 74.3 does not contain the word “direct”. The Board found there was no reason to read the provision that narrowly and that such an interpretation tends to diminish, rather than protect, the interests of employees and to undermine rather than promote, the legislative purpose of Part XVIII of the Act.
[37] This interpretation is supported by previous Board jurisprudence (Carlos Farms referenced above). The Board held that there is evidence, albeit indirect, upon which to draw an inference that the workers agreed with TPS that it would assign them work on a temporary basis for its clients. The Board found that when the workers were required, TPS put out a call to Mr. Tieu who acted as an intermediary or broker between TPS and the workers. The workers came to the location and at the time stipulated by TPS. The Board concluded:
“In all probability, given that they appeared at the location and at the time required by TPS, the workers agreed to be deployed in this fashion…. Once the workers arrived at the worksite, TPS representatives were there to greet and direct them or to check in with them or to occasionally treat them to lunch. The workers used TPS documentation to verify their attendance at the work site. Viewed in its entirety and contextually, the evidence is sufficient to conclude that, through Tommy Tieu, TPS and the workers agreed to their assignment to perform temporary work for the clients of TPS including Van Egmond.”[^24]
[38] The Board found that whether or not a direct agreement was entered into between TPS and the workers dispatched by Mr. Tieu, an agreement had occurred indirectly. TPS entered into a contract with its client business Van Egmond to supply temporary labour. It held itself out to the client as the employer of the temporary labourers it would provide. It then put out a call to Mr.Tieu who dispatched those workers to Van Egmond at the location and time stipulated by TPS. When the workers arrived, they signed into work at the client site on TPS’s timesheets. They were assisted at the workplace not by a representative of Mr. Tieu or Chot Bun Hov, but by a representative of TPS.
[39] TPS in its factum asks this court to consider certain aspects of the evidence which it submits support that TPS was not an employer within the meaning of section 74.3 of the Act (One example TPS relies upon is that the only information TPS had regarding the workers was a list of the names of the affected workers; another example is that there was no evidence that when there were concerns with a worker dispatched by Mr. Tieu, that TPS dealt with the worker directly.) As highlighted in Vavilov, absent exceptional circumstances, reviewing courts must not interfere with a tribunal’s factual findings and should refrain from reweighing and reassessing the evidence considered by the decision maker. The Court explained that “many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings…apply equally in the context of judicial review.[^25]
[40] I find no error in the Board holding that an agreement can be reached through an intermediary such as Mr. Tieu, or in the Board considering all of the other factors it noted as pointing to the existence of an indirect or implied agreement. Indeed, although arguing in several paragraphs of its factum that section 74.3 required a direct agreement, counsel for TPS conceded during the hearing that an agreement under section 74.3 could be indirect.
[41] TPS highlights that the Board found that there was not a sufficient evidentiary foundation to find Mr. Tieu was the TPS’s agent and submits that therefore he could not have made an agreement on behalf of the workers. However, a finding of employment or agency was not required to determine that Mr. Tieu was the vehicle by which TPS made agreements with the workers he dispatched.
[42] I find that the Board’s application of section 74.3 was reasonable and consistent with the text and purpose of the Act, Part XVIII.1 and section 74.3 specifically.
Issue 2: The Board reasonably concluded that TPS was the “employer” of the affected workers under [s.1(1)](https://www.canlii.org/en/on/laws/stat/so-2000-c-41/latest/so-2000-c-41.html#sec1subsec1_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/so-2000-c-41/latest/so-2000-c-41.html)
[43] TPS submits that the Legislature specifically added Part XVIII.1 (Temporary Help Agencies) to the Act which leaves no room for the generic employer/employee definitions set out in section 1(1) to apply to temporary help workers and temporary help agencies. TPS contends that section 74.3 contains the test for determining who the employer is, and TPS cannot be found to be the employer if there is no agreement between TPS and the workers of the Subcontractor CBH. It submits that the structure of the Act and the legislative history confirm that the definition of “employer” in section 1(1) does not apply.
[44] The Board considered and rejected TPS’s argument that if section 74.3 of the Act is inapplicable on the facts of this case, that is the end of the inquiry concerning the possibility of any employment relationship between it and the workers of the CBH Contractor. The Board found that the purpose of section 74.3 is to make clear in the context of a tripartite relationship which of two potential employer parties - the THA (here TPS) and the THA’s client (here Van Egmond) - is the employer of the workers. Section 74.3 makes the THA, not the THA’s client, the employer. The Board held that nothing in section 74.3 or Part XVIII.1 of the Act suggests that the general definition of “employer” in subsection 1(l) does not apply to a THA. Indeed, the definition of “employer” in Part XVIII.1 of the Act refers to “an employer as defined in subsection 1(1) of the Act”.
[45] Bearing in mind the expertise of the Board, I find nothing unreasonable about this conclusion.
[46] The Board found:
[96] In my view, the evidence discloses that, vis-à-vis the workers supplied by Tommy Tieu to TPS’s clients, including Van Egmond, TPS was an employer within the meaning of the definition of “employer” in paragraph (a) of subsection 1(1) because it exercised control or direction of them or was directly or indirectly responsible for their employment. Van Egmond cannot be considered the employer of the workers in a scenario in which it was the client of the temporary help agency, TPS. The “true employer” analysis in Pointe Claire, supra, does not assist TPS to avoid a finding that, because it did little in the way of any direct supervision or oversight of the work of Tommy Tieu’s workers, it is not their employer. And there was no countervailing evidence upon which to conclude that either Tommy Tieu or Subcontractor CBH controlled or directed the workers in question or assumed direct or indirect responsibility over them. At best, Tommy Tieu arranged for the reporting of the workers to the locations on the direction of TPS. I find that TPS was the employer of the workers in issue.
[47] TPS’s submissions regarding Pointe-Claire (City) v. Quebec (Labour Court), 1997 390 (SCC), [1997] 1 SCR 1015 is dealt with in more detail under Issue 4 below.
[48] The Board held that in making the determination of whether TPS was the employer, the definition of “employer” must be considered in context. It explained that “although THA employers, by definition, do not necessarily directly oversee their assignment employees’ labour duties at client sites, the Board must nonetheless interpret the concepts of “control”, “direction”, and “responsibility” in the context of a THA employer.[^26]
[49] As noted above, absent exceptional circumstances, a reviewing court must not interfere with a tribunal’s factual findings and should refrain from reweighing and reassessing the evidence considered by the decision maker. The Board’s conclusion that TPS was an employer of the workers supplied by Mr. Tieu to Van Egmond within the meaning of the definition of “employer” in paragraph (a) of subsection 1(1) of the Act was amply supported by the evidence and was reasonable.
Issue 3: The Board reasonably found that the subcontractor was not a legitimate enterprise and was neither a THA nor an employer within the meaning of the [Act](https://www.canlii.org/en/on/laws/stat/so-2000-c-41/latest/so-2000-c-41.html)
[50] TPS submits that even if section 1(1) of the Act applies, the Board erred in holding that it would result in a finding that TPS was the employer of the workers in question. It submits that the Board erred in concluding that the CBH Agency was not the employer of the workers in question on the basis that it did not meet the definition under section 1(1) of the Act for either (i) a THA or (ii) an employer.
[51] As set out above, CBH Agency is not a registered business name nor was it referenced in any of the documents Mr. Tieu provided to TPS. Cho Bun Hov was clearly not directing the business that bore his name. There was no evidence that CBH Agency was a legitimate business enterprise at arm’s length from TPS.
[52] In its factum, TPS misstates the Board’s conclusions when it states that the workers were managed by Mr. Tieu and that TPS had no relationship with the workers in question. The Board’s conclusions were to the opposite effect. The Board found that there was no evidence upon which to conclude that either Mr. Tieu or Subcontractor CBH controlled or directed the workers in question or assumed direct or indirect responsibility over them. It found, at best, that Mr. Tieu arranged for the reporting of the workers to the locations on the direction of TPS. There was no evidence of Mr. Tieu ever appearing at a client site or exercising any of the functions of a THA or an employer. The Board found that the evidence did not establish that Mr. Tieu or any of the subcontractors associated with him had any clients of their own or that they exercised any control over the persons TPS alleged were their employees.[^27] Conversely, TPS was found in the context of a THA to exercise control or direction of the workers or to be directly or indirectly responsible for their employment. These findings were amply supported by the evidence before the Board and were reasonable.
[53] TPS submitted that the Board erred in concluding that CBH Agency could not be a temporary help agency because it did not have clients as required by the definition of THA in section 1(1) of the Act. It submits that based on the definition of “client” in the Act, TPS would be considered a client of the CBH Agency as the parties had an arrangement for CBH Agency to assign its employees to work for TPS.
[54] This submission ignores the fact that the Board found that the CBH Agency was not a legitimate business enterprise.
[55] I would dismiss this ground of review.
Issue 4: The Board did not err by disregarding the common law test for determining who the employer was in a tripartite relationship
[56] TPS further submits that it cannot be found to be the employer of subcontractor CBH’s workers on any “true employer” analysis in a tri-partite relationship, and in this regard relies upon the seminal decision of the Supreme Court of Canada in Pointe-Claire (City) v. Quebec (Labour Court), 1997 390 (SCC), [1997] 1 SCR 1015. TPS also relies upon subsequent decisions in Sondhi v. Deloitte, 2017 ONSC 2122 and 1527992 Ontario Inc. operating as Events Plus Management v. Tetyana Prydatko, 2016 43548 (ON LRB).
[57] The Board considered this submission and did not find that it assisted TPS. The issue in Pointe-Claire was who the employer was between a client and the temporary help agency. Unlike the legislation at issue in Pointe-Claire, section 74.3 of the Act resolves the question of who the employer is between a client and temporary help agency. The question as TPS has framed it in this case is which of the THAs, TPS or the CBH subcontractor, was the true employer, not whether the client, Van Egmond, was the true employer.
[58] In this case, the Board found that it was TPS that the evidence established exercised “overall control of the employees’ working conditions”, not any subcontractor. No evidence was led during the hearing of Mr. Tieu’s control over any of the factors emphasized in Pointe-Claire, i.e. “the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.”[^28]
[59] Like Pointe-Claire, the decisions in Sondhi and 1527992 dealt with a tripartite relationship, not an allegation that the true employer was a subcontracted THA.
[60] I find no error.
The Decision was not unreasonable for failing to consider the potential impact on the temporary help industry
[61] TPS submits that the Decision was unreasonable because, based on its logic, any THA which utilizes a subcontractor is the employer of that subcontractor’s workers when the subcontractor assigns the workers to a client of the THA. It submits that the Decision has the potential to disrupt thousands of contractual relationships and shift liability from subcontractor companies (who may also be THAs) to the temporary help agencies who manage the client relationship.
[62] I do not agree that the Decision has the sweeping implications for the THA industry that the Applicant claims. The Decision does not address how the Act would apply to two legitimate THAs entering into a subcontract relationship and what the implications of this would be on their liability for wages. It was not necessary that the Decision address this because the Board found that the entity TPS alleged it was subcontracting with did not really exist either as a THA as defined in the Act or as a legitimate business.
[63] I also reject TPS’s submission that the effect of the decision is to create an unjust result that is neither justified nor reasonable in light of the facts or the law. As the Board’s decision recognizes, the affected workers were extremely vulnerable to exploitation. The Board found no evidence that the workers were paid. According to TPS, the entity that should be held responsible if that exploitation occurred is an entity that it chose to contract with and that the Board found was not a legitimate enterprise and that exercised no real control over the workers in question. If injustice were the only determinant of reasonableness, the result sought by TPS is more unjust than the outcome of the Board’s decision. The Decision is consistent with the purpose of the legislation and is reasonable, which includes it being justifiable on the basis of both the facts and the law.
Conclusion
[64] The application is dismissed. In accordance with the parties’ agreement, there is no order as to costs.
Backhouse J.
I agree _________________________________
Sachs J.
I agree _________________________________
Schabas J.
Date Released: August 31, 2023
CITATION: 2517906 Ontario Inc. v. Ontario Labour Relations Board, 2023 ONSC 4890
DIVISIONAL COURT FILE NO.: 529/22
DATE: 20230831
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse and Schabas JJ.
BETWEEN:
2517906 ONTARIO INC. o/a TEMPORARY PERSONNEL SOLUTIONS
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD and the DIRECTOR OF EMPLOYMENT STANDARDS
Respondents
REASONS FOR DECISION
BACKHOUSE J.
Date of Release: August 31, 2023
[^1]: Employment Standards Act, 2000, S.O. 2000,c.41.
[^2]: Decision, para.84.
[^3]: Decision, paras.12-14.
[^4]: Decision, para.94.
[^5]: “Assignment employee” is a defined term in s.1(1) of the Act and is set out on page 7 herein.
[^6]: Decision, para.89.
[^7]: Decision, paras. 26, 40, 89.
[^8]: Decision, paras. 18, 79.
[^9]: Decision, para. 95.
[^10]: Decision, paras.35, 89.
[^11]: Decision, para.28.
[^12]: Decision, para.15.
[^13]: Decision, para.88.
[^14]: Decision, para.84.
[^15]: Decision, para.84.
[^16]: Decision, para.95.
[^17]: Decision, paras.83-84, 86-87,95-96.
[^18]: Decision, paras.95-96.
[^19]: Decision, para.83.
[^20]: Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 at paras.31, 93,119.
[^21]: Turkiewicz, (Tomasz Turkiewicz Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 789 [“Turkiewicz”] at para.61.
[^22]: Turkiewicz at para.77; Enercare Home & Comercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779 at para.64.
[^23]: Canada Post v. Canadian Union of Postal Workers, 2019 SCC 67 at para.40.
[^24]: Decision para.79.
[^25]: Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 at para.125; Turkiewicz, supra at para.101; Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779 at para.64.
[^26]: Decision, para.88.
[^27]: Decision, paras.83-83,86-87, 95-96.
[^28]: Pointe-Claire, supra at para.48.