Employment Rights for Non-Employees

Some companies are now required to extend employee protections to independent contractors. Businesses understand there are a number of laws regulating employees’ rights, working conditions, safety and compensation. What may be surprising to employers, however, is that many of these laws are extended to protect people who are not their employees. In other words, a business will sometimes have to extend “employee” protections to people such as independent contractors and sub-contractors.

Independent contractor rights | BCBusiness
Some independent contractors, such as tractor trailer drivers, now warrant the same rights and protections as traditional employees.

Some companies are now required to extend employee protections to independent contractors.


Businesses understand there are a number of laws regulating employees’ rights, working conditions, safety and compensation. What may be surprising to employers, however, is that many of these laws are extended to protect people who are not their employees. In other words, a business will sometimes have to extend “employee” protections to people such as independent contractors and sub-contractors.

Some recent court decisions help explain when a business will be responsible for protecting non-employees.  

In the first case, the Ontario Court of Appeal decided Ontario’s Occupational Health & Safety Act created obligations for companies to ensure the safety of their independent contractors. Ontario (Ministry of Labour) v. United Independent Operators Ltd. involved an acquittal appeal of the United Independent Operators Limited on charges stemming from the failure to have a joint health and safety committee as required under that Act. UIOL was a company that contracted independent truck drivers to pick up aggregates from quarries and deliver them to UIOL’s customers. One of these truck drivers suffered an injury in the course of working for UIOL. While investigating the accident, the Ministry of Labour discovered UIOL hadn’t established a joint health and safety committee and charged the company.

In its defense, UIOL argued that the truck drivers were independent contractors, and it did not have the “20 or more workers regularly employed” which triggered the requirement to establish the joint health and safety committee.

At trial UIOL was acquitted on the basis that it wasn’t required to establish the committee because the term “regularly employed” applied only to workers who had a traditional employment relationship. The Ontario Court of Justice upheld the acquittal, which was then appealed.

The Ontario Court of Appeal stated it was necessary to consider the purpose of the Occupational Health & Safety Act and the vital role safety committees play in achieving the legislation’s objective of enhanced worker safety. By limiting the interpretation of “regularly employed” to only workers in a traditional employment relationship, the scope of the section would be seriously limited. Thus, the court found that UIOL had to establish a joint health and safety committee.

The second example is from B.C. and involves the Human Rights Code. In Fasken Martineau DuMoulin LLP v. British Columbia Human Rights Tribunal and John Michael McCormick, the B.C. Supreme Court upheld a B.C. Human Rights Tribunal decision that it had jurisdiction to hear a complaint from a law partner that his firm discriminated against him because of his age. The court stated it would be inconsistent with the Human Rights Code’s objectives to exclude a category of persons based on a strict, legalistic categorization of their status (partner versus employee) at common law. 

The court also endorsed the following four tests used by the Human Rights Tribunal when analyzing how broadly the code should be interpreted:

  1. Did the alleged “employer” utilize or benefit from the services performed by the complainant?
  2. Did the alleged “employer” exert control over how the complainant performed the services?
  3. Did the alleged “employer” bear the burden of remunerating the complainant?
  4. Did the alleged “employer” have the ability to remedy the situation?

The court found the law firm met all of the above tests, and that the complaint should proceed to a hearing before the Human Rights Tribunal. 

The above noted tests have been used so far to extend employer obligations to non-employees in health and safety, human rights, and employment standards legislation. Thus, if in doubt whether your business has legal duties toward these types of workers, it is best to get advice from an employment lawyer. When it comes to employment laws, the expression “better safe than sorry” doesn’t just refer to accidents.  


This blog is written by Nicole Byres of Clark Wilson LLP and made available by BCBusiness to provide general information on employment law, and is not a substitute for competent legal advice from a lawyer licensed to practice in your jurisdiction. Neither the reading of this blog nor the sending of unsolicited comments or emails creates a lawyer-client relationship with the writer or Clark Wilson LLP.