By Cheryl A. Edwards
In the OHS world, tragedy frequently begets change. In Ontario, tragedy came in the form of six construction-related workplace fatalities occurring in late 2009 and early 2010, including the highly-publicized quadruple fatality involving immigrant, non-union workers who fell after a swing-stage failure on Christmas Eve 2009.
In the wake of these events, the Ontario government announced a comprehensive review of the Ontario OHS system by a 10-person advisory panel, chaired by Tony Dean, a professor at the University of Toronto’s School of Public Policy and Governance and former Secretary of the Cabinet. Appointed in March 2010, the panel reviewed hundreds of submissions from workplace stakeholders and, on December 16, 2010, released an 80-page report setting out 46 sweeping recommendations for change to Ontario’s health and safety system.
The recommendations are targeted at such issues as the internal responsibility system, the underground economy, reprisals, enforcement of OHS in Ontario and the creation of a new prevention organization.
For the last number of years, and in the lead up to the appointment of the panel, the Ontario government has repeatedly pointed out that the province has doubled the number of full-time OHS inspectors engaging in proactive inspections and reactive investigations since 2005, and that workplace injury and accident rates are going down, not up. The Ontario government has engaged in ongoing hazard-specific blitzes since 2008. Corporate and individual penalties for OHS contraventions in Ontario are amongst the highest in Canada.
Despite this, the chair of the advisory panel, Tony Dean, has been quoted as saying that his desire, and that of the panel, is to “make Ontario the safest jurisdiction in the world.” Indeed, the report states that the goal is to achieve improved compliance and zero workplace injuries, illnesses and fatalities.
This article examines just a few of the 46 detailed recommendations contained in the expert advisory panel report. In our view, the recommendations most likely to significantly impact Ontario employers are as follows:
New prevention organization: The panel recommends a new prevention organization, to be headed by a chief prevention executive, with a multi-stakeholder prevention council. It is recommended that each have responsibilities and powers explicitly set out under the OHSA, with a view to developing integrated occupational health and safety strategies across the current health and safety system, which includes safe workplace associations, the Ontario Ministry of Labour, and the Workplace Safety and Insurance Board.
There are various additional recommendations that accompany this recommendation for a new organization. One interesting recommendation is that the new organization develop a injuries, illness and fatalities. The goal is to create societal change in attitudes, beliefs and behaviours around occupational health and safety. Another express goal of the new organization is to shift prevention functions away from the Workplace Safety and Insurance Board and back to the Ontario Ministry of Labour.
Mandatory training for health and safety representatives: The Ontario Occupational Health and Safety Act (OHSA) was amended in 1980 to require detailed certification training for certified joint health and safety committee members. No such training is required for health and safety representatives, chosen by workers at workplaces with six to 19 workers regularly employed.
The expert advisory panel recommends that basic, flexible and accessible training for health and safety representatives be developed by the new prevention organization and made available to employers for a nominal fee. The recommendation does not contemplate training equivalent to that provided to certified members of a joint health and safety committee as it suggests that the duration of the training would be shorter than for certified members. This recommendation would require only minor changes to the OHSA. Small businesses and short-term construction projects, in particular, should expect to see this recommendation implemented.
Mandatory health and safety awareness training: A significant focus of several expert advisory panel recommendations is on mandatory health and safety training. Firstly, they recommend that the Ministry of Labour develop, and require employers to deliver, a standard health and safety awareness program for all workers. Training is to be received upon entering the workplace prior to exposure to any workplace hazards.
Consultation on the content of basic mandatory health and safety training would occur amongst stakeholders, and it is recommended that it take into account the needs of small business, and language and literacy challenges present in the diverse workforce of Ontario. The advisory panel recommends that this be made free of charge to workers and employers. Where an employer has already established an equivalent program of basic entry level training, this would be grandfathered.
Mandatory health and safety awareness training is also recommended for each supervisor responsible for front line workers. Once again, consultation on content is recommended and the advisory panel recommends that the training be made available free of charge to supervisors and employers.
Given the broad definition of supervisor under the OHSA, the scope of expected training will raise interesting issues: Is a plant manager responsible for front line workers? Do all lead hands require training?
The advisory panel further recommends mandatory entry-level training for construction workers as a priority in the province of Ontario, mandatory fall protection training for workers performing work at heights, and consultation with stakeholders to determine other high-hazard activities that should also be the subject of mandatory training for workers. Whether or not entry-level training is a panacea for preventing fatal and critical injuries in construction or other high-hazard tasks, this is a strong recommendation from the Advisory Panel and employers and supervisors should expect to see amendments to the Ontario OHSA, or its regulations, and training content from the new prevention organization.
Enforcement and Penalties: The advisory panel acknowledges that the OHSA already permits inspectors to wield large sticks. Recommendations in the report would lead to amendment of the OHSA to permit a wider variety of enforcement mechanisms and permit potentially greater consequences for employers who fail to comply. They recommend that the Ministry of Labour review the “set fines” for tickets which can be issued under provincial offences legislation for non-compliance with OHSA requirements.
Tickets, which are similar in nature to traffic tickets, have been available for contravention of a construction requirement for many years and, more recently, for a breach of a requirement in an industrial workplace. The report suggests that tickets rather than compliance orders “provide stronger deterrence” to repeated OHSA contraventions and recommends that stakeholders be consulted with a view to assessing the nature of contraventions for which tickets should be applied. Presumably this recommends consultation to determine whether enforcement through ticketing should be expanded.
The panel recommends consistent tough enforcement for “serious and wilful contraventions,” and less significant penalties for minor contraventions. We note that this recommendation appears to reflect the current sentencing practices of the courts, but could be interpreted as suggestive that courts should get even tougher than they already are in sentencing corporate OHS offenders in Ontario.
Most strikingly amongst the recommendations respecting enforcement and penalties is a recommendation that Ontario consider administrative monetary penalties (AMPs) for OHS contraventions. Under an administrative monetary penalty regime, offences prescribed by regulation would have fixed fine amounts. Upon imposition of the monetary penalty, employers normally have a right to appeal the penalty. British Columbia and Nova Scotia are currently the only jurisdictions in Canada to utilize AMPs for contraventions.
Given the Canadian enforcement environment, employers should expect the Ontario government to give very serious consideration to amendments which focus greater energy on enforcement via a multi-pronged approach of tickets, prosecutions and administrative penalties. There could be a significant impact on employers if OHSA inspectors are given the power to issue AMPs as the burden of proof on the ministry may be lessened.
An appeal against an AMP would likely involve a determination of two issues: (1) Whether the alleged OHSA breach has been proven; and (2) Whether due diligence was exercised. Under the existing regime, in which financial penalties are imposed through prosecution in the courts, the Crown (Ministry of Labour) must prove the OHSA breach beyond a reasonable doubt. In an AMP regime, where appeals would likely be adjudicated by the Ontario Labour Relations Board (OLRB), the evidentiary burden on the Ministry of Labour would likely be the lesser standard of proof on a balance of probabilities. In our view, the strict, court-developed due diligence standards, to which employers are held, are unlikely to be relaxed.
Reprisals: The advisory panel noted that, when dealing with alleged reprisals, Ministry of Labour Inspectors would attend and investigate any underlying health and safety concern but would not investigate the reprisal allegation itself. Rather, the inspector would refer the worker to the OLRB. As a result, the recommendations suggest that the Ministry of Labour and OLRB develop a process to expedite the resolution of reprisal complaints. As part of this, the panel suggests that inspectors investigate the reprisal by interviewing workplace parties and, in “clear and obvious cases” and with the consent of the worker, refer the matter to the OLRB who could order interim reinstatement of the worker. The advisory panel also addresses enforcement by recommending that the Ministry of Labour review its prosecution policy to provide guidance to Inspectors on when to prosecute for a violation of the reprisal provisions of the OHSA.
Greater Guidance To Employers and Incentives: The recommendations acknowledge the importance of compliance assistance, particularly to small business. In several places the report recommends that government increase available information and guidance through publications and through direct support and information from Ministry of Labour Inspectors, who have moved away from providing advice and assistance when engaged in proactive inspections. The Panel suggests that the new prevention organization, in conjunction with stakeholders, develop an accreditation program to recognize employers that implement successful OHS management systems, including systems to select suppliers and contractors based on their health and safety performance.
The advisory panel has moved swiftly to develop a comprehensive, complex set of recommendations. Changes to the legislation and overall system could be equally swift. The Ontario government has already committed to appoint a chief prevention officer and the advisory panel, in its final recommendation, suggested that, among others, the recommendations related to the new prevention organization, workplace training and reprisals be “implemented as priorities over the next twelve months.” Employers, managers and OHS professionals will wish to watch closely as the future of OHS in Ontario unfolds.
Cheryl A. Edwards is a former Ontario Ministry of Labour Occupational Health and Safety Prosecutor and leads Heenan Blaikie’s national OHS &Workers’ Compensation Practice Group. Cheryl can be contacted by e-mail at firstname.lastname@example.org or by telephone at (416) 360-2897.
Jeremy Warning is a senior Associate in Heenan Blaikie LLP’s Labour and Employment Group and a member of the firm’s national Occupational Health & Safety & Workers’ Compensation Practice Group. Jeremy may be contacted by e-mail at email@example.com or by telephone at (416) 643-6946.
Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or firstname.lastname@example.org
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