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 effectiveness of the persuasion strategy, the important point here is that it became institutionally entrenched so that the default practice of inspectors was to engage with employers in a manner that minimized conflict. Essentially, inspectors sought to advance workplace health and safety by providing advice and attempting to convince employers to take remedial measures. Prosecution was a last resort and was resorted to rarely.
This institutional practice received a new impetus when OHS laws were revamped in the late 1970s to create the legislative framework described in the previous section. It will be recalled that among the law’s many innovations was the addition of what is now described as an occupational health and safety management (OHSM) approach to regulation, which required employers to adopt certain processes to create what was then called an internal responsibility system (IRS). This existed alongside a more traditional external responsibility system (ERS) that built on specification standards and their enforcement.
In the years immediately following the enactment of OHSA, the government adopted a policy of promoting the IRS with a view that the ERS would play a secondary role, dealing with the projected minority of situations in which the IRS failed to function effectively and, at a minimum, achieve compliance with the minimum specification standards. As a result, inspectors were instructed to minimize the number of enforcement actions they took and instead to get the workplace parties to work cooperatively through the joint health and safety committee to better address OHS concerns and problems. Such an approach to inspection and enforcement was consistent with the traditional practices of inspectors under the previous regime.
Needless to say, this approach proved to be terribly controversial and worker OHS activists decried what they perceived to be a failure of enforcement, much in the way their predecessors had in the late-nineteenth and early-twentieth century. Ontario governments responded to this pressure in a variety of ways, including amendments to the OHSA that more deeply institutionalized joint health and safety committees and that increased penalties (Bill 208, S.O. 1990, c. 7.). However, it was not until the mid-1990s that a significant change in enforcement practice was implemented, putting greater emphasis on the ERS, entailing both more enforcement actions by the inspectors and prosecutions for offences, especially when violations resulted in fatalities or serious injuries. This pattern of practice, which still prevails, will now be described in more detail.
There are many measures of enforcement practice. A logical way of mapping is to start with the most basic intervention, in this case simply the fact of an inspection, and to move up to the more assertive measures, here ending with criminal prosecutions.
As Graph 3 demonstrates, in recent years there has been an upwards trend in the activity levels of inspectors, which has been supported by an increase in the complement of inspectors. Between 2005 and 2010, the government doubled the number of OHS inspectors to a total of 430.
Field activity is the broadest category and includes any visit by an inspector to a workplace to enforce the OHSA. It includes inspections, investigations and consultations. Inspections are a subset of field activity and include visits to monitor compliance and to promote the IRS. These activities are proactive in that they are planned according to criteria devised by the OHSD. By contrast, investigations are reactive in the sense that they occur for the purpose of investigating a fatality or critical injury, complaint or work refusal. Consultations are a small component of field activity and have not been included in this chart.
What these data show is not only that field activity has significantly increased over the past twenty years, but that the greatest share of this is the result of an increase in proactive investigations. It is necessary, therefore, to say a few words about the criteria that are used to schedule proactive investigations. It is infeasible address the allocation criteria used over the entire 20-year period. Thus, what follows focuses on the most recent strategy adopted by OHSD beginning in 2005/06, which is now known as Safe At Work Ontario. The OHSD has adopted a risk-based approach to regulation in which they target workplaces for inspection based on a publicly stated set of criteria that include:
injury rates and claims cost
hazards inherent to the work
size of business
specific events or incidents such as critical injuries and fatalities
the presence of new and/or vulnerable workers
On the basis of these criteria, sector plans are drawn up that specify how proactive inspection resources will be deployed. The most recent set of plans cover 2011-12. Within this context, heightened enforcement campaigns, better known as “Safety Blitzes” are planned and announced in advance. For example, for the industrial sector, five safety blitzes are planned for the year: new and younger workers; tower crane suppliers; personal protective equipment; racking and storage; and musculoskeletal disorders.
This leads to the next question: what do inspectors do during a field visit? There are actually no field studies that have been conducted examining the practice of inspection and so this description is based on both documentary and statistical sources. Inspectors are accompanied by the employer and a worker representative who is entitled to be paid for the time spent. Where there is no worker representative, the inspector is required by statute to consult with a “reasonable” number of workers who are physically present (s. 54(3-5). The Act does not specify whether the inspector is to consult with workers outside of the presence of the employer and the normal practice is unclear.
At the end of an inspection, the inspector prepares a report that may make recommendations and, if there are contraventions a written order to comply within a set time frame will be issued. If there is a contravention that creates an immediate danger to a worker or a member of the public, the inspector may issue a stop work order. Graph 4 presents data on the frequency of these orders over the past 20 years.
These data indicate there has been an increase in orders and stop work orders that is consistent with the increase in inspection activity, which is evidence that the increase in inspections is not merely cosmetic, in the sense of simply bumping up the numbers, but that enforcement powers are being exercised during these visits, including the stop work power which has immediate consequences to the employer.
Data on prosecutions is kept by the LSB, which over the years has changed the way it records its activities. As a result, it is more difficult to construct a time series. There are however, data from 1993 for fines and from 1997 for convictions that indicate an increase in prosecutions and fines, particularly since 2005 (Graph 5).
The picture is nevertheless complicated because the data includes both Part I and Part III prosecutions, which means that the numbers after 2005 are inflated by the expansion of the ticketing system, which permits inspectors to impose on-the-spot fines on employers, supervisors and workers. In practice, workers and supervisors receive about 37 percent of summonses each, while employers receive 25 percent. As Garry Gray has noted, this targeting blurs the definition of who is an OHS offender and diffuses responsibility. It also has resulted in a reduction in the average fine per conviction (Graph 6).
Data that disaggregates Part I and Part III prosecutions have been obtained from the LSB for 3 years, 2007/08 to 2009/10. The data show that while, on the one hand, there has been an increase in the more serious Part III prosecutions over these years, from 369 in 2007/08 to 445 in 2009/10, on the other, the average fine per conviction for these more serious offences has been declined from $35,303 to $28,839.
There has been little resort to the use of the criminal sanctions notwithstanding the enactment of Bill C-45, which came into force in 2004. Across Canada, less than 10 criminal charges have been laid. Three criminal cases have been brought in Ontario. The first charge criminal charge arose out of ditch collapse that killed a worker in Newmarket, Ontario. The charge was laid in 2004 and was resolved by a plea deal in which the criminal charge was dropped in exchange for a guilty plea to violations under the OHS statute. The second criminal prosecution in Ontario was launched against Millenium Crane, the company’s owner, and the crane operator at the time. However, in this case too the charges were dropped after an engineering report failed to support the prosecution’s case. The third prosecution, which is pending at the time of writing, arose out of a scaffolding collapse that killed four workers on Christmas Eve 2009. The accused include the Metron Construction Co. and three of its officials.
In Quebec, two cases have resulted in a conviction. In Transpavé Inc., involving a workplace fatality, the accused pleaded guilty and was fined $110,000.00. The first conviction after a trial was obtained against Pasquale Scrocca, a landscape contractor. In that case, an employee died when the brakes on a backhoe Mr. Scrocca was driving failed, pinning the employee against a wall. Scrocca received a conditional sentence of imprisonment for two years less a day to be served in the community with conditions, including a curfew. One case, R. v. Gagné, Steve Lemieux and Simon Gagné, ended with an acquittal. In that case, charges were laid following a collision between a train and a maintenance vehicle, which resulted in one death and three injuries. The two accused individuals were employees of Québec-Cartier: Steve Lemieux, was the train operator, and Simon Gagné, was a foreman. Justice Dionne found that the mistakes made by the employees arose from a corporate culture of tolerance and deficient training, not wanton and reckless disregard for the lives and safety of workers on the part of the accused. In principle, this finding could have resulted in a conviction of the corporation, but it had not been charged. There is at least one case still pending, against Mark Hritchuk, the service manager at a car dealership, where an employee died after catching fire due to a broken fuel pump.
Finally, in British Columbia, the United Steel Workers launched a private prosecution in 2010, arising out of the death of a Weyerhauser employee in British Columbia in 2004. The company was previously assessed a penalty of nearly $300,000 by the BC compensation board. A court has ruled that the union presented enough evidence for the case to go forward, but the Crown subsequently intervened to terminate the prosecution.
Overall, the experience so far of using the Criminal Code to prosecute corporations and individuals for OHS crimes is proving to be difficult. In Ontario, two of the three prosecutions ended with the criminal charges being withdrawn. The third case is still pending. Convictions have been obtained in two cases in Quebec. In the Transpavé case, the corporation was sentenced to a fine of $100,000.00 which was significantly higher than the maximum penalty ($20,000) then available under Quebec health and safety law. The only jail sentence was against a small business operator who was personally operating the equipment that caused the death. While it is possible that the threat of criminal prosecution has a broader general deterrent effect, and may be used to leverage guilty pleas under provincial legislation, more research would be needed to establish whether that is so.
The analysis returns to an evaluation of the practice of OHS enforcement in subsequent sections on best practices. However, it is worth emphasizing here that proactive inspections, reactive inspections with prosecutions for violations that harm workers, and workers’ voice are all strongly embedded in the enforcement regime, in addition to voluntary compliance measures, and that although the relative importance of each has varied over time, these features have survived through Progressive Conservative, Liberal and New Democratic Party governments. Indeed, except perhaps for a short period immediately after the enactment of the OHSA, a strong commitment to state enforcement has undergirded the OHS regulation regime in Ontario.
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