The Ministry of Labour’s (“MOL”) Enforcement division is responsible for enforcing the Occupational Health and Safety Act (the “OHSA”) and its regulations. The MOL can visit an employer’s workplace at any time, and has extensive authority to investigate a workplace without any reasonable cause or justification. Most notably, a MOL Inspector has the power to enter and investigate a workplace, including confiscating an employer’s property, without a search warrant or prior notice.
The OHSA provides MOL inspectors with a number of enforcement tools, one of which is the authority to issue a ticket against a workplace party that is found to have contravened the OHSA. Tickets tend to designate low dollar value fines, which are referred to in Ontario Regulation 851 (Industrial Establishments Regulation), under the OHSA, and specified under the Schedules to the Provincial Offences Act. A detailed list of fines as they relate to the various sections of the OHSA can be found on the Ontario Courts website under the OHSA section: http://www.ontariocourts.ca/ocj/how-do-i/set-fines/set-fines-i/.
Currently, the maximum fine resulting from a ticket is $1,000, although most fines do not exceed $300. By contrast, a successful prosecution (also referred to as a “summons”) may result in more severe penalties: individuals may be subject to a maximum fine of $50,000 per offence, or imprisonment, while corporations may be fined up to $500,000 per offence.
In accordance with Ontario’s Provincial Offences Act, the MOL also has the authority to refer any charge against an employer to the Provincial Crown, which can issue a Court summons for any type of OHSA violation. The Crown has the option to initiate a prosecution for certain violations, which can result in significant monetary fines, and the imprisonment of an individual employee or stakeholder in a defendant corporation.
The following are common strategies for responding to, or dealing with, tickets and Orders issued by an MOL Inspector, along with possible responses to a summons issued by the Crown in regard to a charge laid by the MOL.
Pay the Fine / Ticket
For most tickets, with fines of less than $300, it may be more cost effective to pay the ticket as opposed to disputing same. However, employers should note that Inspectors and decision makers (such as Courts, the MOL and the OLRB) will consider an employer’s “health and safety record” when making decisions with respect to subsequent cases, fines and Compliance Orders. Courts and administrative decision makers reward employers for maintaining safe and functional workplaces, thus maintaining a clean health and safety record, while penalizing those employers whose health and safety record shows numerous previous tickets and violations.
Employers and individuals should note that, in addition to the fine set by the MOL, they will have to pay administrative Provincial Court fees, as well as a “victim fine surcharge”. The “victim fine surcharge” amount varies for fines below $1000, ranging from $10 to $125. For fines over $1000, the victim fine surcharge amounts to 25% of the value of the fine.
Employers should note that in addition to designating a monetary fine, MOL tickets will typically require an employer or an individual to follow up with an Inspector to confirm that they are in substantial compliance with the OHSA. Employers and individuals must discharge their obligations pursuant to the ticket and confirm this with the MOL Inspector who issued the Order to avoid further charges.
Complying with an MOL Inspector’s Order
In circumstances where a party has been issued an Order by an MOL Inspector, the Order will typically specify a time frame within which the party must comply with the OHSA.
Compliance Orders may also be “time unknown” in that they do not specify an amount of time within which a party must comply with the OHSA. This type of Order will result in a “stop work” or “plan”. The MOL Inspector will engage the party and notify the time requirements for compliance with these types of orders on a case-by-case, or issue-by-issue basis.
Alternatively, the MOL Inspector may issue an Order that must be satisfied “forthwith”, meaning that the Order must be complied with immediately.
Along with any Orders, the Inspector will also provide a Notice of Compliance form. This form is to be completed and signed by the employer and health and safety representative or a joint health and safety committee member. The worker representative must check a box beside the order to indicate agreement or disagreement that compliance has been achieved for the Order(s).
An employer will also be provided with a “Field Visit Report” by the MOL Inspector. Once the Notice of Compliance form has been sent to the Inspector, a copy of the Field Visit Report must be posted in the workplace and a copy must be provided to the worker representative and the joint health and safety committee.
An MOL Inspector will typically conduct a follow-up visit after the issuance of the Field Visit Report, in order to verify that the affected parties are in compliance with the OHSA.
Appealing an MOL Inspector’s Order
Alternatively, if an employer, constructor, licensee, owner, worker or union who is issued an Order by an MOL Inspector disagrees with the Order, the aggrieved party can appeal the Order to the Ontario Labour Relations Board (“OLRB”) within thirty (30) days of the Order being issued. The party appealing the Order can also ask the OLRB to suspend the Order until the appeal has been decided.
Depending upon the complexity of the issue(s) under review, appealing an order at the OLRB can require between one (1) and several days of hearing. Furthermore, unlike a civil Court appeal, the OLRB cannot issue costs in favour of the winning party. So, even if a party is successful upon appeal to the OLRB, they would still be responsible for absorbing their legal costs.
In rendering a decision, the OLRB has all the powers of an Inspector and has the ability to uphold the Order of the Inspector, rescind it or issue a new Order with an increased fine.
The MOL’s website indicates that a decision of the OLRB in respect of a MOL Inspector’s Order is “final”. However, the Judicial Review Procedure Act permits a party to appeal a decision of the OLRB to the Divisional Court. The Divisional Court does not conduct a new hearing, nor does the Court conduct an appeal in the traditional sense; rather, it reviews the Board’s decision to determine if it was “reasonable” (or “correct”, in limited circumstances).
It appears that the Divisional Court has yet to overturn a decision of the OLRB, clearly indicating that the Court defers to the judgment of the OLRB regarding matters under its jurisdiction.
Negotiating with the Crown in Response to a Court Summons
If the MOL wishes to initiate a prosecution against an individual or an organization, the Crown will issue a Court summons to the party in question, which will refer to a fine or penalty for the OHSA contravention in question.
If the defendant employer, or individual, does not wish to defend the claim but wishes to negotiate a plea bargain with the Crown, it is welcome to attempt to do so. The party should keep in mind that even if the Crown endorses a lower sentence, a Justice of the Peace in the Provincial Court is authorized to vary the sentence (lower or higher) based on the principles of sentencing and proportionality.
Further, if a defendant enters into a plea bargain, it is typically provided with a time frame within which to pay the fine in question. These “payment plans” vary on a case-by-case basis and can extend for several years to provide a litigant with enough time to pay a significant fine.
Finally, in addition to any monetary fine, the defendant would be responsible for paying any Provincial Court administrative fees as well as the applicable victim fine surcharge.
Defending the Summons in Provincial Court
In the event that a party wishes to defend itself against a charge under the OHSA, the defendant will have to argue its case in Provincial Court before a Justice of the Peace.
Leaving aside defences that are based on evidentiary matters, procedural issues or disclosure, a defendant employer’s strongest legal defence against a charge by the MOL is that it has exercised “due diligence” (i.e. taken every precaution reasonable in the circumstances) to avoid any risk to the employee, its workforce and/or the public.
If the Provincial Court renders a finding of guilt, an employer can appeal the decision of the Provincial Court to the Ontario Court of Appeal. It is important to keep in mind that the Court of Appeal has the ability to substitute a higher fine or penalty than the one specified in the Provincial Court’s decision. Furthermore, appeals at this level tend to involve very significant fines or penalties (or multiple charges) and can attract negative publicity for a defendant employer.
Key Takeaways for Employers
While acknowledging that a “spot audit” or “blitz inspection” by the MOL can cause a lot of stress among employers and workers, it is important that all affected individuals cooperate with the MOL and its Inspectors at all times. At no point in time should an employer or any employee obstruct, impede, or be non-cooperative with an Inspector or other representatives of the MOL. Doing so could result in an employer and/or its employee(s) being charged with obstructing an Inspector under section 62(1) of the OHSA.
An employer should always take steps to create a safe work environment for its staff members. An employer is best advised to dedicate necessary resources to determine the cause of the ticket, Order or summons, and rectify the situation immediately. The OLRB, Provincial Court and Court of Appeal will be far more likely to entertain an argument that the fine(s) or penalty(ies) initially sought should be lowered if they are presented with evidence of a defendant’s remedial efforts at complying with the OHSA.
Finally, employers should be cognizant of the significance of fines (including non-monetary penalties), Compliance Orders and summons issued by the MOL, and the strict time frames involved with respect to defending claims, complying with Orders and filing appeals. Failure to adhere to these time frames can result in a “default” finding against an employer, which, in extreme cases, can result in hefty monetary fines and/or imprisonment.
Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates
Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance.