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 (WSIA) and the Occupational Health and Safety Act (OHSA).[484] The WSIA is administered through the Workplace Safety and Insurance Board (WSIB). Workplace safety insurance provides an employer funded compensation and rehabilitation 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, OHSA 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 to stop work by certified members of a joint health and safety committee. 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. 

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.[485]  

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.[486] 

 

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 a complaint with the Ontario Labour Relations Board (OLRB). At the OLRB, the onus is on the employer to prove that no reprisal took place.[487] 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.[488] Also effective April 1, 2012, a new regulation under the OHSA prescribed the functions of the Office of the Worker Advisor (OWA) and Office of the Employer Advisor (OEA) in respect of reprisal complaints. These are discussed further in the discussion section on reprisals leading up to Recommendation 37.

 

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.[489] 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.[490] Committees can make written recommendations on health and safety improvements to which the employer must respond.[491] Any work refusals and serious injuries can be investigated by the committee. Some Project Advisory Group members suggested that in some cases employers did not set up operational joint health and safety committees/representatives or, in some cases, they were in place in name only. Through our consultations, we were advised that the Ministry of Labour assesses the functioning of the joint health and safety committee as part of an inspection or investigation.[492] Accordingly, this is an area that would benefit from increased proactive enforcement.

The Law Commission of Ontario recommends that:

34. 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.[493] 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.[494] 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. [495] 

The OHSA applies to most workplaces but there are certain exemptions and limitations. For example, persons hired directly by homeowners and working in their private residences are excluded, including live-in caregivers. Originally, farming operations were exempt but in 2006 farming operations were brought under the OHSA, with some limitations.[496] 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.[497] 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 Safety Guidelines for Farming Operations in Ontario which have been jointly developed by representatives of the farming community, the Farm Safety Association, the Ministry of Agriculture, Food and Rural Affairs and the Ministry of Labour.[498] These guidelines are a “starting point for the workplace parties to think about how to fulfill their obligations under the OHSA.”[499] 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.[500] 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:

35. The Ontario government ensure that stakeholder discussions between industry and government regarding health and safety include workers or their representatives.

  

B.    The Dean Report

In January 2010, the Ontario Minister of Labour appointed an Advisory Panel on Occupational Health and Safety to conduct a review of Ontario’s occupational health and safety system. The panel, chaired by Tony Dean, was composed of academics and representatives of labour and employers with expertise in health and safety issues. The Dean Report was released in December 2010. The Report’s recommendations focused on enhanced training, resources and support, protections against reprisal, and an OHSA structure for prevention that is aligned with enforcement.

The Dean Report found that there was wide-spread commitment for the internal responsibility system.[501] The existing model presents a balance between internal and external enforcement. We support the continued commitment to that balance. 

As a result of the Panel’s recommendations, amendments were made to the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, establishing the Ministry of Labour as the lead for prevention of illness and injury.[502] The changes resulted in the appointment of Ontario’s first Chief Prevention Officer to coordinate the prevention system and will permit the appointment of a new Prevention Council as well as the establishment of standards for health and safety associations, workplace education and training, and the promotion of workplace safety. The Dean Report and the Chief Prevention Officer have noted the importance of prioritizing vulnerable workers and small businesses.[503] Given that precarious work can often be found in small and medium sized enterprises, this is an important development, in our view. 

Highlighting the protection of vulnerable workers as a priority, the Dean panel 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.”[504] 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.[505] 

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.[506] Dean also commented upon the vulnerability of temporary agency workers, 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. 

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