Sweeping occupational health and safety bill passes in Ontario – impact on employers

On May 18, 2011, the Ontario Legislative Assembly passed Bill 160, the Occupational Health and Safety Statute Law Amendment Act, 2011. Most of the Bill’s provisions will take effect when it receives royal assent. However, some sections will take effect on either April 1, 2012, or a date set by the lieutenant-governor, whichever is earlier.

The Bill amends the Occupational Health and Safety Act and the Workplace Safety and Insurance Act to allow the Ministry of Labour to take the lead for accident/injury prevention, transferring this role from the Workplace Safety and Insurance Board (WSIB). It will also lead to the appointment of a new Chief Prevention Officer (CPO) to coordinate and align the prevention system. The Bill will allow the Ministry of Labour to create a new prevention council to advise the CPO and the labour minister on health and safety matters, with representatives from labour, employers, employees, the WSIB and safety experts.

The changes also give the minister of labour, through the CPO, oversight of the province’s health and safety associations as well as the education, training and promotion of workplace health and safety standards.

Key provisions that will impact employers directly include:

• Employers with 6 to 19 employees, and constructors who must appoint a health and safety representative, will now be required to provide mandatory training to enable the representatives to effectively exercise their powers and perform their duties, similar to the current required training for members of a joint health and safety committee (JHSC). This training must meet any requirements that will be set by the Chief Prevention Officer, and the employer/constructor must pay the representatives while they’re attending training.
• The CPO will advise the Ministry of Labour on the mandatory training and certification standards that members of joint health and safety committees must fulfil in order to become certified. Ryan J. Conlin from Stringer Brisbin and Humphrey expects that the ministry will require all members of the JHSC undergo training and be certified. Currently, for organizations employing between 20 to 50 employees, only one worker member and one management member of the JHSC are required to receive certification training.
• Currently, a JHSC has the authority to make recommendations as a committee to the employer on health and safety matters. Bill 160 will allow either co-chair (certified employee or management member) of a JHSC to offer their own written recommendations to a constructor or employer if the committee fails to reach consensus after a good faith effort to do so.
• The Ministry of Labour and CPO can develop a code of practice which would set out how workplace parties are expected to comply with specific legal requirements under the OHSA and Regulations. Following the provisions of the code will result in an employer being deemed to comply with the legal requirements. However, failing to comply with the terms of a code of practice does not automatically result in a finding that a workplace party breached the OHSA and Regulations. Conlin points out that requirements imposed upon employers are often very general. If codes of practice become commonplace, Conlin expects that the ministry will set out specific measures that an employer can implement to ensure compliance wit the OHSA. He also believes that having codes of practice would have a significant impact on litigation.

Conlin elaborated on litigation and codes of practice with this important example:

In one recent case, the employer was accused of failing to ensure that a Supervisor was competent to operate a “skid steer” (a loading vehicle) which had been rented by the constructor for use on a project. An accident occurred when a worker approached the skid steer while the Supervisor was operating it. The shovel of the skid steer landed on the worker’s foot when the sleeve of the Supervisor’s jacket activated the control of the machine. The Supervisor testified that he had frequently used similar skid steers with other employers but had never been formally trained in their safe operation.

The Court found the Defendant employer not guilty of the charges, primarily on the basis that the supervisor was very experienced in the construction industry, had used similar equipment in the past without incident, and had received safety rules related to wearing loose clothing. The result at trial may have been very different if the Ministry had established a code of practice by regulation, which mandated that all workers receive formal training in the safe operation of a skid steer before allowed to operate it on a project.

(R. v Rochon Building Corporation, unreported, Ont. Ct. Jus., Whitby, February 24, 2011, Read J.P.) The case is currently being appealed by the Ministry of Labour.

In addition, amendments to Section 50 of the Act allow a Ministry of Labour inspector to refer a matter to the Labour Relations Board when a worker alleges that his or her employer has violated the prohibition against reprisals and where circumstances warrant. The matter cannot have been dealt with by final and binding settlement by arbitration under a collective agreement or by the worker filing a complaint with the board, and the worker must consent to the referral. In a previous version of the Bill, under these circumstances, an inspector was not a compellable witness before the board when a reprisal complaint had been filed. This meant that the inspector could not be called as a witness; this fact could prejudice the interests of either party to the proceeding, particularly where the inspector was actively involved in the issues that gave rise to the proceeding. Following approved amendments before the Bill received third reading, inspectors may appear before the board on reprisal matters. According to Conlin, it is important to appreciate that employers are subject to a reverse onus and are required to prove on a balance of probabilities that a reprisal did not occur. It is somewhat unusual for a government official to have the power to initiate a civil type proceeding on behalf of an individual litigant. It is likely that the number of reprisal complaints will increase significantly when Bill 160 becomes law. He also expects that reinstatement of a worker would become a more common remedy.

What’s next?

Many of our subscribers are indicating that they are getting calls from training providers trying to sell them mandatory training packages that will be required when Bill 160 comes into force. Note that for now, the new training standards for health and safety representatives among others have not yet been established by the Ministry of Labour and Chief Prevention Officer. It will take a while for the CPO to implement the provisions under Bill 160. Once the specific training requirements are released, you will know what health and safety training your employees will need.

In addition, the WSIB is still responsible for the enforcement of the First Aid Regulation (all employers who are subject to the Occupational Health and Safety Act must comply with First Aid Regulation 1101 under Section 3 of the Workplace Safety & Insurance Act) and the Workwell program (on-site health and safety audits of firms when their experience rating indicates that there is a higher risk of injury at their workplace compared to other firms doing similar work). These two topics may be transferred to the Ministry of Labour; for now, however, they remain under the banner of the WSIB.

Bill 160 only addresses some of the recommendations from the Expert Advisory Panel to improve the Ontario occupational health and safety system. More changes are underway in the form of further legislation, regulation and administrative changes in the next few years.

More information on Bill 160 can be found on our online publication, HRinfodesk.com.

Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor

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Marie-Yosie Saint-Cyr, LL.B. Managing Editor

Managing Editor at First Reference Inc.

Marie-Yosie Saint-Cyr, LL.B., is a trained lawyer called to the Quebec bar in 1988 and is still a member in good standing. She practiced business, employment and labour law until 1999. For over 20 years, Yosie has been the Managing Editor at First Reference. She manages the PolicyPro Human Resources and Internal Controls editions, The Human Resources Advisor editions, PaySource and the HRinfodesk news service as well as the blogs. Marie-Yosie (a.k.a. Yosie) is a recognized and respected author, with an extensive background in human resources, employment and labour across the country.

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