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Employment - Temporary Help Agencies. 2517906 Ontario Inc. v. Ontario Labour Relations Board
In 2517906 Ontario Inc. v. Ontario Labour Relations Board (Div Court, 2023) the Divisional Court considered a JR of an ESA OLRB order where the primary issue was that of 'true employer', here involving a 'temporary help agency'. In these quotes the court discusses the common law 'tripartite' doctrine applicable to temporary help agencies: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 CanLII 390 (SCC), [1997] 1 SCR 1015. TPS also relies upon subsequent decisions in Sondhi v. Deloitte, 2017 ONSC 2122 (CanLII) and 1527992 Ontario Inc. operating as Events Plus Management v. Tetyana Prydatko, 2016 CanLII 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. . 2517906 Ontario Inc. v. Ontario Labour Relations Board
In 2517906 Ontario Inc. v. Ontario Labour Relations Board (Div Court, 2023) the Divisional Court considered a JR of an ESA OLRB 'Order to Pay' where the primary issue was that of 'true employer', here involving a 'temporary help agency'.
In these quotes the court considers the definition of 'employer' under the ESA in the 'temporary help agency' context: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. ....
Issue 1: The Board reasonably concluded that TPS was the “employer” of the affected workers under s.74.3 of the Act
[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:74. 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.
75. As the Supreme Court of Canada observed at page 1003 in Machtinger v. HOJ Industries Ltd., 1992 CanLII 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 CanLII 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”.
76. Recently, the Board applied these principles in Jose Evelio Carranza operating as Carlos Farms Services v. Anna Woelke, 2022 CanLII 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:34. 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.
....
[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]
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