A. Ontario Legislation — The Occupational Health and Safety Act
The Occupational Health and Safety Act (OHSA) is the principal vehicle through which the Ontario government protects Ontario’s workers from being exposed to unacceptably hazardous working conditions. It does so by imposing duties on employers, supervisors, workers and others to comply with standards established by the Act and the regulations made pursuant to it. As well, it requires the employer to establish a system to manage OHS that includes the appointment of competent supervisors, preparation of a written OHS policy, and provision of information to health and safety representatives or joint health and safety committees. The legislation also provides for workers to be involved in OHS management at their workplaces through a right to know about hazards in the workplace, a right to participate through the appointment of health and safety representatives, and a right to refuse unsafe work without the threat of retaliation for doing so.
The Workplace Safety and Insurance Act is involved in prevention principally through the provision of financial incentives administered through its various experience rating plans. It used to also be involved in prevention through its supervision of safe workplace associations and other educational and promotional activities. However, recently, in response to recommendations from the Expert Advisory Panel on Occupational Health and Safety, known as the Dean Report, these functions were transferred to the OHS Division (OHSD) of the MOL by Bill 160 (2011).
Since this report is focused on enforcement and compliance, these educational and promotional aspects of the MOL’s mandate are not reviewed here, although they are discussed in the context of best practices. The discussion of enforcement, however, necessarily considers the management systems dimension of the OHSA legislation since the two dimensions of the legislation cannot be separated.
Indeed, it is useful at this point to draw out a distinction between two different kinds of regulation. On the one hand, the OHSA, and the regulations promulgated under it, sets out specific standards that must be obeyed. For example, designated substance regulations limit worker exposure to various harmful substances such as lead and asbestos. These are known as specification standards. On the other hand, the OHSA also requires employers to create or engage in certain processes to manage OHS. A good example is the recent violence and harassment sections of the Act that require employers to prepare policies that have a certain minimum content, conduct a risk assessment, and provide workers with information and instruction (OHSA, Part III.01). These are known as process standards.
The OHSA applies to nearly all provincially regulated employers and binds the Crown (s.2). Sections of the Act also apply to independent contractors (s.4). It does not, however, apply to work performed by the owner or occupant, or a servant of the owner or occupant in or about a private residence (s. 3(1)). As a result, domestic workers employed by the owner or occupant fall outside the act, a matter of some concern given the precarious and vulnerable situation of such workers.
Unlike most employment law, the OHSA is not built on the platform of the contract of employment. Rather, rights and duties depend on establishing a “worker” status. Worker is defined as “a person who performs work or supplies services for monetary compensation” (s. 1). Also, employer is defined as a person who employs one or more persons or contracts for the services of one or more workers, and includes a contractor or a subcontractor who performs work or supplies services. As a result, an employer owes the same duties to self-employed persons it hires as it does to employees. Thus, for example, the Ontario Court of Appeal recently held that a company that hires truck drivers as independent contractors was nevertheless required to establish a joint health and safety committee because it regularly employed twenty or more workers.
Inspectors have broad powers to enforce the OHSA. They are authorized to enter into any workplace at any time without a warrant or notice (s. 54(1)). The only exception to this is with respect to dwellings used as workplaces. In this setting, inspectors may only enter with the consent of the occupier or under the authority of a warrant (s. 54(2)). Again, this exception may be significant for some precarious or vulnerable workers who are working at home.
Once in the workplace inspectors have authority to examine and handle equipment and materials that are present, to require production of documents, to conduct tests, to be accompanied and assisted by experts, to require the employer to conduct tests, etc (s. 54(1)). The inspector is also authorized to question any person and every person must assist the inspector in the performance of her or his duties (s. 62). Where the inspection becomes an investigation into a suspected violation of the Act because the inspector has reasonable and probable grounds to believe that an offence has been committed, a warrant will be required and can be obtained under the act.
Where the inspector finds a violation of the Act, he or she has a variety of enforcement powers. The inspector can issue an order to comply and specify either that the order be carried out forthwith or at some specified date in the future (s. 57(1)). The inspector may also order the employer to submit a compliance plan (s. 57(4)). Where the inspector finds that the violation presents a danger or hazard to the safety of a worker, he or she can issue a stop work order. Work may not be resumed until the inspector withdraws the order after an inspection. However, work may be resumed pending an inspection if a worker representative advises the inspector that in her or his opinion the order has been complied with (s. 57(6-7)). Inspectors’ orders may be appealed to the Ontario Labour Relations Board within 30 days and the Board has the power to suspend the operation of the order pending a disposition of the appeal (s. 61).
Inspectors do not have the power to prosecute violations of the act although they can recommend that a prosecution take place. They may, however, issue tickets under Part I of the Provincial Offences Act (POA) for contraventions of the Act that are listed in schedules issued pursuant to O. Reg. 950 promulgated under the POA. There is a set fine that may be paid without a court appearance or a defendant may elect to have the charge tried. Employers, supervisors and workers can be ticketed. The ticketing power was substantially enlarged in 2005. Previously, tickets had been used in construction but they now cover a much wider range of contraventions. There are now 81 ticketable offences. Workers are the target of 30, supervisors the target of 31, and employers of 21. The set fine is determined by the Senior Justice of the Ontario Court of Justice. They were last updated at the beginning of 2010. Current fines are either $195 or $295 per offence. Inspectors can also issue summonses under Part I for any violation of the OHSA. When a summons is issued, the defendant must make a court appearance and the maximum fine on conviction is $1000.
More serious offences are prosecuted under Part III of the POA. The decision to prosecute is made by the Legal Services Branch (LSB) of the MOL, which also conducts the prosecution. Defendants can raise a due diligence defense but they bear the burden of proving that they took every precaution reasonable in the circumstances to comply with the law. Upon being convicted, an individual may be fined up to $25,000 or to a prison term of not more than 12 months, or both. A corporation may be fined up to $500,000.
Finally, it should also be noted that employers may also be charged under the Criminal Code. While in theory employers always could be charged with criminal offences, such as criminal negligence, historically it had been attempted rarely and succeeded only once. The enactment of the so-called Westray Bill, Bill C-45, in 2003 facilitated the prosecution of such charges. It imposes a duty on all persons “directing the work of others” to take reasonable steps to ensure the safety of workers and the public. It also creates new rules for attributing criminal liability to organizations, including corporations, and identifies factors that should be used to sentence an organization convicted of a criminal offence.
In sum, OHS law imposes enforceable duties on employers, supervisors, workers and others to provide a safe and healthy workplace, to adopt specified OHS management practices and to work safely. To obtain compliance with these duties, OHS inspectors can choose from among a wide range of measures. In addition to non-statutory mechanisms, such as providing advice and persuading, enforcement actions range from issuing an order to launching a criminal prosecution. The important question, which the next section addresses, is how these powers are exercised.
B. Mapping OHS Enforcement
The translation from law on the books to law in action is crucial to the effectiveness of any regulatory scheme, including OHS. This section examines the current practice of OHS compliance and enforcement activities by the MOL. Before doing so, however, a bit of background on the history of OHS enforcement is necessary since patterns of past practice may play a role in shaping current ones.
OHS regulation has its modern roots in late nineteenth-century factory legislation. The Ontario Factories Act was passed in 1884 and came into force 2 years later. The Act contained special provisions regarding child and female labour, but also set general health and safety standards for all workplaces covered by the Act. In addition to a general duties clause, the law made provision for machine guarding, sanitation, lighting, ventilation etc. Crucially, it also provided for the appointment of inspectors who were empowered to enter workplaces and issue orders. Violation of the Act was an offence punishable by fine and imprisonment.
Consistent with the practice of factory inspectors in other jurisdictions, Ontario’s factory inspectors adopted a persuasion model of enforcement. Employers were advised about problems in their workplaces and recommendations for improvement were made. Prosecutions were almost never launched. Inspectors justified this approach on the basis that it was more effective in securing compliance from employers who were generally disposed to comply with the law. Trade unionists, however, took a very different view, arguing that the act was not being enforced and that, as a result, workers were being killed and injured at alarming rates. This was especially so in the wake of a second industrial revolution beginning in the late-nineteenth century, which was marked by more mechanization and labour intensification.
Without reviewing debates about the effec