The Canadian Bar Insurance Association

Littler LLP: David J. Master

Ontario, Canada may soon see regulations addressing temporary help agencies' liability for workplace injuries

In 2017, Bill 148, the Fair Workplaces, Better Jobs Act, 2017, significantly amended the Employment Standards Act, 2000 (the “ESA”), the Ontario Labour Relations Act, 1995 (the “LRA”) and the Occupational Health and Safety Act (the “OHSA”), a summary of which can be found here.  Bill 148 included several amendments that provided additional protections for “assignment employees” employed by “temporary help agencies.”

In The Changing Workplaces Review, a government-sponsored report which gave rise to Bill 148, assignment employees were identified as among the “most vulnerable and precariously employed of all workers.”

Temporary help agencies do offer some advantages to assignment employees, such as temporary employment.  Also, like internships, employment through a temporary help agency can enable assignment employees to break into a sector that might otherwise be difficult to penetrate, and ultimately lead to permanent employment.

However, one of the biggest risks to assignment employees arises from the fact that under the ESA, the temporary help agency is deemed their “employer.”1 Some enterprises fill inherently dangerous positions with assignment employees to avoid liability for workplace injuries knowing that even if they occur at their own site, liability will lie with the assignment employee’s “employer,” the temporary help agency.

Issues arising from the triangular nature of these relationships were addressed by the following amendments to the ESA and the WSIA in Bill 18, Stronger Workplaces for a Stronger Economy Act, which received Royal Assent on November 20, 2014:

  • An amendment to the ESA that holds both the temporary help agency and the assignment company2 liable for unpaid wages, which came into force on November 20, 2015;
  • An amendment to the ESA that requires both the temporary help agency and the assignment company to keep records of all hours worked, which came into force on November 20, 2015; and
  • A proposed amendment to the WSIA, which would add a new subsection 83(4) providing for regulations that attribute injury and accident costs resulting from an assignment employee's workplace injury to the assignment company in addition to or instead of the temporary help agency. Subsection 83(4) was to come into force on a day proclaimed by the Governor in Council. However, it was never proclaimed and a regulation was not established. 

In a March 8, 2018 article, the Toronto Star discussed its investigation regarding the death of a temporary employee who was strangled by her hijab in a workplace accident. It noted that its investigation:

“…showed how companies use temp agencies to cut costs and limit liability for accidents because temp agencies were considered workers’ so-called employer of record at the provincial compensation board.  As a result, the agency took the financial hit if a temp got hurt, not the place where they were actually injured.”   

The article also noted that the Workplace Safety & Insurance Board, “struggled in the wake of the temporary employee's death to hold [the assignment company] accountable, because the necessary legislation was not in place.”

It seems, however, that assignment companies may not be able to avoid being held accountable for injuries to assignment workers much longer.  As the Toronto Star reported, “Labour Minister Kevin Flynn said government will proclaim legislation written three years ago but never enacted.”  This is a reference to section 83(4) of the WSIA, which has remained in legislative limbo since November 2014. Once proclaimed into force, it will permit the establishment of regulations governing which entity can be held accountable for an assignment employee's injury and accident costs.

We will be closely monitoring any further developments and providing updates as they unfold

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