There have been several moderate to severe workplace accidents reported recently by the media. Last month alone, there were reports of two work-related fatalities involving Ontario-based companies and several “serious” or “critical” injury cases.
In response to such incidents, the Ministry of Labour (“MOL”) has openly stated it is engaging in an extended campaign of industry-specific “blitzes” which will continue throughout 2017. These blitzes involve a substantial increase in random health and safety inspections and OHSA compliance checks.
This article will serve as a review of the broad and sweeping investigative, deterrent and punitive powers granted to the MOL under the OHSA. These powers differ significantly from those afforded to other regulatory bodies, and in some respects, surpass powers granted to police and other law enforcement officials.
Part VIII of the OHSA – Enforcement
The MOL’s mandate is to ensure compliance with the OHSA. To further this mandate, the MOL is granted substantial administrative powers under the OHSA. These include the issuance of compliance orders, administrative orders, and where appropriate, the power to initiate regulatory prosecution (leading to monetary and other penalties) of persons or companies. Persons charged with offences under the OHSA are prosecuted under the Provincial Offences Act (“POA”).
Sections 54 – 56.1 of the OHSA – Powers of Inspectors
Health and Safety Inspectors are the MOL’s front line officers, acting as a liaison between the Director of the MOL and workplace parties. Inspectors are typically appointed as Provincial Offences Officers under the POA.
Conducting Workplace Investigations
Inspectors can conduct workplace investigations, at random and without notice, on a discretionary basis to ensure compliance with the OHSA. Inspectors’ investigatory powers include:
- The power to enter workplaces without a warrant or notice;
- The power to question any person, either privately or in the presence of another person, to further a workplace investigation;
The right to handle, use, and test workplace machinery, equipment, materials or agents (including samples);
- The power to take possession of and remove from the workplace any documents or records and make copies of them (the Inspector must provide a receipt for removed documents and return them promptly after making copies);
- The right to photograph any part of the workplace;
- The power to require that any part of the workplace be left undisturbed for a “reasonable period of time” in order to conduct an investigation, examination or test;
- The right to perform any tests or demonstrations of equipment, including making workplace parties operate the devices/processes in question;
- The right to review any materials pertaining to a worker health and safety training program, or be allowed to attend at training programs as an observer;
- The power to direct a Health and Safety Representative, or Joint Health and Safety Committee (“JHSC”) member, to conduct mandatory inspections at specified intervals;
- The right to require, at the employer’s expense, an expert to test and provide a report regarding equipment, machinery, materials, agents, processes, etc.
- The power to require, at the employer’s expense, a professional engineer to test (and if necessary stop the use of) any equipment or machinery and verify that they are not likely to endanger a worker;
- The power to require an owner, constructor or employer to provide, at the employer’s expense, a report from a professional engineer that assesses the structural soundness of a workplace;
- The power to conduct a post-incident investigation of critical injuries, fatalities, work refusals and health and safety complaints, at any time.
Hindering, obstructing, molesting or interfering with a workplace investigation is considered an “offense” under the OHSA. The OHSA requires every workplace party to assist an Inspector in the exercise of their powers and duties. Every person in the workplace must cooperate with the Inspector.
If a workplace party is found to have breached the OHSA, an Inspector has the discretion to issue a written order to comply with the law within a specified time period, or, if there is an imminent hazard, comply immediately or stop work altogether. The following are common types of Inspector’s orders:
“Stop Work” Orders
An Inspector may order that any place, equipment, machinery, material, process, etc. not be used until it has been declared safe;
That work (production, etc.) be stopped until the stop work order is cancelled or withdrawn by the Inspector;
The workplace be cleared of workers and access prevented until the workplace is safe; and
That any hazardous material not be used.
After a Stop Work Order has been issued, an employer is only authorized to resume work or the use of equipment before a further inspection if both of the following conditions have been met:
a. The employer has notified the Inspector that the order has been complied with; and b. A JHSC committee member (worker representative) or health and safety representative advises the Inspector that, in his/her opinion, the Stop Work order has been complied with.
Inspectors have broad discretion under the OHSA to ensure compliance with the statute and its Regulations. Compliance orders can cover practically any subject, rule or obligation set out under the OHSA and its Regulations. Accordingly, compliance orders can relate to training requirements, failure to use Personal Protective Equipment, posting and reporting obligations, etc.. The subject matter of compliance orders, including the appropriate remedial steps required to ensure compliance with the OHSA, often vary on a case-by-case basis.
Employer Posting Obligations
Any time an Inspector issues an order or a report of an inspection, a copy of the order or report must be “posted” in the workplace where it is most likely to be seen by workers. A copy of the order must also be provided to the JHSC or health and safety representative.
Appeals of Orders
Where a person/entity that is aggrieved by an Inspector’s order feels that it is incorrect, they can appeal (within 30 days of the issuance of the order), to the Ontario Labour Relations Board (“OLRB”).
Prosecution, Offences and Penalties
One of the most significant deterrents against non-compliance with the OHSA is the power of an Inspector to initiate a prosecution under the POA. An Inspector may initiate a prosecution when he/she has “reasonable and probable grounds” to believe that a workplace party has committed an “offence” under the OHSA. A workplace prosecution may be initiated against any workplace party – employer, employee, supervisor, etc.
Prosecutions under the POA are “provincial offences”, under which a court may impose a fine and/or jail term against an individual defendant.
- Maximum penalties for individuals convicted of an offence are $25,000 and/or imprisonment for up to 12 months, per charge.
- The maximum fine that can be imposed on a corporation convicted of an offence is $500,000, per charge.
Inspectors may issue several charges because of the same accident if the circumstances warrant them doing so. Thus, one person or company can face several charges for a single “act” which “breaches” the OHSA, facing exposure to substantial fines and/or imprisonment.
Recent Penalties/Prosecutions (2017)
- Mississauga: A roofing company was fined $57,000 after a worker fell through a roof and was seriously injured.
- Grimsby: A builder was fined a total of $20,000 after the collapse of a construction project.
- Whitby: A security services company was fined $70,000 for failing to meet Bill 132 and Bill 168 Training Requirements.
- Mississauga: A logistics company was fined $70,000 when a worker was seriously injured after being pulled into a moving conveyor belt.
- Newmarket: A window and door manufacturer was fined $150,000 after a worker was killed and another injured.
- Timmins: A mining, and paving company was fined a total of $95,000 after a worker injury.
- Kitchener: An injury to a worker at wastewater plant resulted in an $85,000 fine.
- Peterborough: An employer was fined $105,000 after a worker was killed by an excavator.
Employers often find out about the breadth of the MOL’s powers after it is too late – when they are facing hefty penalties and/or prosecution. Further, employers must recognize that failure to cooperate with MOL Inspectors can only harm an employer’s chances at minimizing a potential penalty. Finally, this article should serve as a reminder that compliance with all applicable aspects of the OHSA and its Regulations is mandatory, not optional. Considering the MOL’s renewed commitment to “blitz” companies across the province with Inspections, ensuring compliance with the OHSA should be a top priority for all employers.
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.