A. The Legislative Framework for Health and Safety
Ontario’s regulatory scheme for health and safety is primarily governed by two statutes: the Workplace Safety and Insurance Act, 1997 (WSIA) and the Occupational Health and Safety Act (OHSA).559 The WSIA is administered through the Workplace Safety and Insurance Board (WSIB). Workplace safety insurance provides an employer funded compensation and early and safe return to work insurance plan for work-related injury/illness.
The legislative mechanism by which workers’ health and safety is protected is governed by the Occupational Health and Safety Act and its regulations. The OHSA is based on the principle of the internal responsibility system under which the workplace parties share responsibility for occupational health and safety. Employers are required to have a health and safety policy and must ensure there is a joint health and safety committee (and in smaller workplaces, health and safety representatives). The OHSA sets out the four basic rights of workers: a) the right to participate in identifying and responding to workplace health and safety concerns; b) the right to know and have training and information about any potential hazards; c) the right to refuse work that is dangerous or exposes the worker to workplace violence; and d) the right of certified members of a joint health and safety committee to stop work in dangerous circumstances. The OHSA sets out the obligations of those who have control over the workers, workplace, materials or equipment. The Act imposes a general duty on employers to take all reasonable precautions to protect the health and safety of workers and specifically defines the employers’ responsibilities. Workers are required to work safely and comply with the Act and its regulations. If the internal responsibility system fails, the Ministry of Labour has the authority to enforce the OHSA and it does so through inspections both proactive and reactive, compliance orders and charges. Bill 168, the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace), 2009, introduced strengthened protections for workers from workplace harassment and violence by requiring employers to develop and implement policies and procedures to respond to and prevent workplace violence and harassment.560 A more detailed description of historical developments in Ontario’s health and safety system are outlined in the Dean Report and by Vosko et al.561
Amendments to the OHSA in 2011 explicitly define the Minister’s powers and duties to include the promotion of health and safety and the prevention of injuries, public awareness, education and the fostering of a commitment to occupational health and safety among workers and employers.562
1. Reprisals and 2011 Amendments
Section 50 of the OHSA prohibits reprisals against workers for acting in compliance with or seeking enforcement of the Act or regulations. A worker who believes they have been penalized because they exercised their rights and responsibilities under the Act can file complaint with the Ontario Labour Relations Board (OLRB). At the OLRB, the onus is on the employer to prove that no reprisal took place.563 In response to the Dean Report, under 2011 amendments to the OHSA that became effective April 1, 2012, Ministry of Labour inspectors, on consent of the worker, may refer a worker’s reprisal complaint to the OLRB.564 Also effective April 1, 2012, a new regulation under the OHSA prescribed the functions of the Office of the Worker Adviser (OWA) and Office of the Employer Adviser (OEA) in respect of reprisal complaints. These are discussed further in the discussion section on reprisals leading up to Recommendation 35.
2. Joint Health and Safety Committees (JHSCs)
Joint health and safety committees/representatives provide a process for identifying and resolving workplace health and safety concerns. This mechanism provides a forum for worker voice and participation, functioning as a partnership between management and workers to fulfill an advisory role for workplace safety.565 In most workplaces with at least twenty employees, committees must be established. In smaller workplaces, individual representatives are appointed by workers or, where applicable, the trade union. Representatives have essentially the same powers as the joint committee. In larger workplaces, at least one worker and one management representative of the committee must be “certified”. As of April 1, 2012, the Ministry of Labour, through the Chief Prevention Officer, has the mandate to set standards for the certification and training of joint health and safety committees, and to certify members who meet the standards. Committees identify hazards by conducting workplace inspections and obtaining information from employers.566 Committees can make written recommendations on health and safety improvements to which the employer must respond.567 Any work refusals and serious injuries can be investigated by the committee. Some Project Advisory Group members suggested that some employers did not set up operational joint health and safety committees/representatives or, in some cases, they were in place in name only. In its response to the Interim Report, the government explained, “[a]s part of an inspection or investigation, inspectors typically monitor the functioning of the internal responsibility system at a workplace, and one of the key ways inspectors do this is by assessing whether there is a properly functioning joint health and safety committee (or representative) in place.” 568 Accordingly, this is an area that would benefit from increased proactive enforcement.
The Law Commission of Ontario recommends that:
32. OHSA enforcement activity include proactive inspections to ensure joint health and safety committees and representatives are in place where required and are effectively operational.
Under the OHSA system, compliance and enforcement are achieved through a combination of an internal responsibility system which relies on the worker-employer partnership and an external responsibility system which relies on formal enforcement strategies through inspections, proactive and reactive to complaints, critical injuries, fatalities and refusals.569 Confirmed violations can result in the issuance of compliance orders and/or stop work orders or prosecutions under Part I (tickets) or for more serious matters, Part III, of the Provincial Offences Act.570 In very rare circumstances, in proceedings separate from the OHSA, following police investigation and the laying of criminal charges, offenders are prosecuted under the Criminal Code. 571
The OHSA applies to most workplaces but there are certain exemptions and limitations. For example, it does not apply to “work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence.”572 Among others, live-in caregivers are excluded from the Act. Originally, farming operations were exempt but in 2006 farming operations were brought under the OHSA, with some limitations.573 Farming employers have the same legal obligation to take every precaution reasonable in the circumstances for the protection of workers as employers in other industries. Farming supervisors and workers also have the same obligation as those working in other industries to take appropriate steps to identify and address all workplace hazards. The inspection and enforcement regime also applies. While the OHSA requires a joint health and safety committee to be set up at a workplace with 20 or more regularly employed workers, the application of this requirement is limited to mushroom, greenhouse, dairy, hog, cattle and poultry farming. For other types of and smaller farms (i.e., 6-19 regularly employed workers), health and safety representatives are required. In workplaces with temporary agency workers, some stakeholders are of the view that certain employers are misinterpreting “regularly employed workers” to exclude temporary agency workers in order to circumvent the requirement to have a joint health and safety committee.574 As part of the recommendation above, proactive enforcement activities should include targeting this type of activity to ensure proper compliance.
Rather than regulations specifying hazards, there are Occupational Health and Safety Guidelines for Farming Operations in Ontario which have been jointly developed by representatives of the farming community; farm safety association; the Ministry of Agriculture, Food and Rural Affairs; and the Ministry of Labour.575 These guidelines are a “starting point for the workplace parties to think about how to fulfill their obligations under the OHSA.”576 In our consultations we heard concerns raised from labour-side commentators about the importance of worker participation in any stakeholder discussions, such as technical advisory committees regarding farm health and safety issues. On the other hand, we also heard that stakeholder consultation of both labour and employer-side interests are consistently undertaken in the development of OHSA regulations, legislation, policies and sector plans.577 It is unclear to us whether consultations on worker-side concerns are currently sufficient, but we are clear that they are necessary. Such consultation could include workers themselves, their organizations, legal representatives or other experts and representatives.
The Law Commission of Ontario recommends that:
33. The Ontario government ensure that stakeholder discussions between industry and government regarding health and safety include workers or their representatives.
B. The Dean Report
Highlighting the protection of vulnerable workers as a priority, the Dean Report defined vulnerable workers as “those who have a greater exposure than most workers to conditions hazardous to health or safety and who lack the power to alter those conditions.”578 Worker vulnerability was recognized as arising from
not knowing one’s rights under the OHSA, such as the right to refuse unsafe work; having no work experience or training that is job – or hazard – specific; and being unable to exercise rights or raise health and safety concerns for fear of losing one’s job, or in some cases, being deported.579
The Report pointed to particular subgroups, including young workers; recent immigrants; workers new to their jobs or workplaces; low-wage workers in multiple part-time jobs; temporary agency workers; and temporary foreign workers who are employed in agriculture, hotel/hospitality and construction.580 The Dean Report also commented upon the vulnerability of undocumented workers and refugees and those employed in the underground economy of industries such as construction, building cleaning, restaurant, transportation, farming and the garment trade. The Dean Report found that there was wide-spread commitment for the internal responsibility system.581 The existing model within the OHSA presents a balance between internal and external enforcement. We support the continued commitment to that model.
The Dean Report and the Chief Prevention Officer have noted the importance of prioritizing vulnerable workers and small businesses.582 Given that precarious work can often be found in small and medium