The safety of workers is governed by the Ontario Occupational Health and Safety Act. The Ontario Ministry of Labour is responsible for ensuring compliance with the provisions of that Act by employers in the province. The Ministry’s activities have increased dramatically in the last two years with the hiring of 42 new inspectors. This has resulted in an increase of approximately 35 percent in the total visits carried out by the Ministry inspectors in 2011. This increase in inspectors has resulted in a proportionate increase in inspections of specific employers, which in turn has significantly increased the number of orders issued by the Ministry under the Act. As a result, the number of convictions under the Occupational Health and Safety Act of both individual respondents and corporate respondents has increased from 313 in 1997 to 1303 in 2008/2009, the last year for which statistics are available.
Given the significantly increased likelihood that an employer will be met by an OHSA complaint and investigation, it seems prudent for employers to be aware of their obligations under the Statute, and to understand how they avoid becoming the subject of an investigation.
The Act imposes on employers the obligation to provide safe equipment, adequate training in the procedures to use that equipment, proper protective devices as required, and a safe building. The employer is also required to provide proper instruction to its employees in order to improve the safety of their work methods and workplace, and to prepare an annual health and safety policy which must be displayed in the workplace. The employer also must appoint either a committee or an individual to act as the health and safety representative for the workplace to co ordinate the activities required by the Statue. The employer is required to maintain records of the handling and storage of hazardous material and make these records available to any worker who may be exposed to dangerous materials in the workplace.
The Act also imposes certain obligations on workers in the workplace. The workers are required to perform the duties to the extent possible in compliance with the provisions of the Act, to use the protective and safety equipment provided by the employer, and to report any hazardous or dangerous events in the workplace.
The provisions of the Act are enforced by inspectors from the Ministry of Labour. The inspectors are given wide powers under the Statute to inspect the workplace to remove any piece of equipment or material from the workplace which is suspected as causing a hazard to workers, conduct tests, and prohibit use of equipment which it is perceived is causing a hazard. The inspector may also require that toxicology and other tests be performed at the workplace at the expense of the employer. The employer is entitled to have a representative accompany the inspector during the course of the inspection.
If at the conclusion of the inspection the result is that, in fact, the employer has contravened the provisions of the Act, the inspector shall make an order either in writing or orally requiring the employer to remedy the contravention within whatever amount of time the inspector feels is appropriate. Any oral order must be confirmed in writing before the inspector leaves the premises. Where the inspector feels that the contravention is causing a risk to the life or safety of a worker, he can order either a portion or all of the workplace shut down pending rectification of the problem.
Where the employer feels that the decision of the inspector is unjustified, the employer may appeal that order to the Ontario Labour Relations Board. Decisions of that Board are appealable to the Ontario Divisional Court. Those appeals must be launched within 30 days after the orderis issued. The Board will then order a hearing to consider the appeal at which both the Ministry of Labour and the employer will have the opportunity to present evidence and argument as to the fairness of the order. The Board has the power to confirm the order of the inspector, amend it, or substitute its own decision for that of the inspector. While the decisions of the Board are final, the Board does have the right to hear applications for reconsideration where a party feels that the decision is in error. Where it appears that the Board has exceeded its jurisdiction, there is the possibility of an application for judicial review to the Divisional Court.
Ontario employers are well advised to seek specific advice as to the requirements for compliance with this Statute. In particular, the notice requirements and the workplace rules should be reviewed in detail to avoid running afoul of the Statute.
Garfinkle, Biderman LLP
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