Distracted driving, and in particular texting while driving, are important occupational safety issues, and employers need to act, the U.S. Occupational Safety and Health Administration says in a new brochure called “Distracted Driving: No Texting“.

The brochure quotes an official as saying, “It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving.”

The brochure goes on to state that employers should “Prohibit texting while driving. OSHA encourages employers to declare their vehicles ‘text-free zones’ and to emphasize that commitment to their workers, customers, and communities.”

OSHA states that if it receives a “credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity, we will investigate and will issue citations and penalties where necessary to end this practice.”

One expects that Canadian workplace safety inspectors would similarly take action, under occupational health and safety legislation, against employers who require or encourage employees to text while driving, or impose such great demands on employees that they are practically required to text while driving.

An employer’s appeal of a Ministry of Labour inspector’s compliance orders may proceed, despite the inspector’s ongoing investigation into possible charges, the Ontario Labour Relations Board has ruled.

The inspector’s compliance orders dealt with the wearing of personal protective equipment and the training of workers regarding hazards associated with moving vehicles or equipment.  The employer appealed the orders to the OLRB.  At the same time, the inspector continued an investigation that could result in potential charges against the employer under the Occupational Health and Safety Act.

Interestingly, it was the Ministry of Labour – not the employer – that asked the OLRB to adjourn the employer’s appeal until the inspector’s investigation had been completed.  The Ministry argued that it would not be proper to address issues in the OLRB’s pre-hearing in the employer’s appeal, or in the course of the appeal itself, which may involve other workplace parties such as the union and a particular worker who were participating in the inspector’s investigation into possible charges.

The OLRB rejected the Ministry’s request, stating that the employer, which was represented by counsel, wished to proceed with the appeal and had not yet been charged with offences under the Occupational Health and Safety Act.  Further, at least at the pre-hearing stage of the employer’s OLRB appeal, the employer would not be required to provide any information to the Ministry against its will which could prejudice the employer if it were charged under the Occupational Health and Safety Act after the inspector completed the investigation.

Lastly, the OLRB stated that any concerns about prejudice would be more persuasively raised by an employer whose interests were potentially at risk, rather than by the Ministry.

In the result, the employer was permitted to proceed with its appeal of the Ministry inspector’s compliance orders.  The Ministry’s request for reconsideration of the OLRB’s decision was also dismissed.

This is a welcome decision that permits employers to challenge Ministry inspectors’ compliance orders without having to wait until the inspector has completed his or her investigation.

Trisan Construction Inc v Labourers International Union of North America, Local 183, 2012 CanLII 87260 (ON LRB), request for reconsideration denied.

Many Ontario employers will be relieved by an Ontario appeal decision that clarifies – and limits – the obligation to report workplace accidents to the Ontario Ministry of Labour.  “[I]t is not part of the purpose and objective of the Act to protect non-workers.”

A guest’s swimming pool death did not require an Ontario resort to file a Notice of Accident with the Ontario Ministry of Labour, the Ontario Court of Appeal ruled, overturning a lower court decision that risked dramatically expanding some employers’ accident reporting obligations.

Facts

In 2007, the guest had drowned in an indoor swimming pool at the resort.  No Blue Mountain employees were working at the pool at the time.  A Ministry of Labour inspector ordered Blue Mountain to report the accident to the MOL.  The inspector’s decision was upheld by the Ontario Labour Relations Board and the Ontario Divisional Court.

Section 51 Notice of Accident

The Occupational Health and Safety Act‘s accident-notification provision, subsection 51(1), states:

51(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [underlining added]

The MOL argued that “person” means any person, not just employees, so that employers must report any death or critical injury of any person – including guests or visitors – in a workplace.

The Court of Appeal disagreed, noting that the MOL’s interpretation would have the absurd result that it would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place.  This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”  For instance, there was evidence that there were approximately 7,000 accidents every year at Ontario ski resorts, many of which – on the MOL’s interpretation – would need to be reported to the MOL even if no employee was involved.

When to file MOL Notice of Accident: 3 Factors

The Court of Appeal decided that an employer must file with the MOL a Notice of Accident where the following three requirements are met:

“a) a worker or non-worker (“any person”) is killed or critically injured;

b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and

c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).”

The third factor – a reasonable nexus between the safety hazard that caused the accident and a risk to worker safety – is the key factor arising from this decision.  It means that an injury to a non-worker in a workplace will not require the filing of a Notice of Accident if it does not reveal a worker-safety risk.

Result: No Requirement to Report This Guest’s Death

The court said that here, there was no evidence that the guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.  As such, the third factor was not satisfied, and the resort was not obligated to report the accident to the Ministry of Labour.

Implications for Workplace Violence Policies

The court’s clarification of the meaning of “workplace” is also relevant to employer’s workplace violence policies and programs.  Employers’ workplace violence obligations will extend to a place where “(i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”.

This is an important and readable decision that human resource and health and safety managers should read.

Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)

In a long-running and bitterly-fought case involving prison guards, the Ontario Labour Relations Board has held that the work refusal process under the Occupational Health and Safety Act may not be used to challenge existing and established practices of the employer.

The case involved a staged work refusal by Correctional Officers and other prison employees after an unidentified person called the institution and said that a “zip gun” – a crude, home-made prison weapon – was in the institution.

The Institution’s Operational Manager decided that under the institution’s weapon search policy, the situation called for a “Level 2(b)” search of the institution; the employees demanded a “Level 4″ search which would involve cell extractions of prisoners by specially trained teams.

A Ministry of Labour inspector was called in. He decided that the employees did not have the right to refuse to work.  The employees nevertheless continued the work refusal.

The employees appealed the MOL inspector’s decision to the OLRB.  The OLRB agreed with the inspector: the employees had no right to refuse to work. The OLRB decided that the threat posed by zip guns was a normal part of the employee’s employment and was inherent in their work; therefore, under certain exceptions in the Occupational Health and Safety Act that apply to prison workers and other listed workers such as police officers whose work is inherently dangerous, the work refusal was not valid.

The OLRB went on to state that the OHSA’s work refusal provisions may not be used to call into question existing and established practices of an employer. Here, the application of the weapons search policy and the process through which the institution’s management decided which level of search to conduct, was part of the existing and established practices of the institution.  Therefore, the management decision of which level of search to apply may not be challenged through a work refusal.

The OLRB’s decision effectively means that where the employer has an established practice, the employees may challenge the safety of that practice by asking a Ministry of Labour inspector to order that the practice is not safe, but employees may not refuse to work in the interim.

Dowling v. Hamilton-Wentworth Detention Centre, 2012 CanLII 81181 (ON LRB)

Ontario Ministry of Labour inspectors are conducting a winter safety blitz looking for the following:

• Diesel emissions and other hazards that could affect air quality at underground mines (January and February)
• Hazards that could cause slips, trips and falls in industrial workplaces (February and March)
• Workplace violence and harassment issues in health care workplaces (February and March)

For the Ministry of Labour’s announcement of the blitz, click here.

An engineer’s inspection report must use the specific language “not likely to endanger a worker” in order to comply with the Occupational Health and Safety Act, an Ontario Labour Relations Board decision suggests.

Following receipt of Ministry of Labour compliance orders, a construction company retained an engineering firm to examine a tower crane.  The engineering firm reported to the inspector that there were no defects in the structure of the crane and that it can be put back into service.  The Ministry of Labour inspector essentially refused to accept the engineer’s report as it did not use the “not likely to endanger a worker” language.  The inspector ordered the construction company to have a professional engineer inspect the tower crane and provide a report that it was “not likely to endanger a worker”, wording found in s. 54(1)(k) of the OHSA.  The construction company appealed those orders.

The construction company then moved to suspend the operation of the orders.  The OLRB, relying on a 2011 decision called Hardwall Construction, held that because the engineer’s report did not specifically state that the tower crane is not likely to endanger a worker, the OLRB could not be satisfied that workers would not be endangered if the compliance orders were suspended.

In the Hardwall Construction case, the OLRB had stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

While some professional engineers may be uncomfortable, for professional liability reasons, with certifying that machinery or equipment is “not likely to endanger a worker”, the OLRB has confirmed that those words are required in any engineering report under section 54(1)(k) of the OHSA.

Drewlo Construction Limited v. A Director under the Occupational Health and Safety Act, 2012 CanLII 66865 (ON LRB)

The Ontario Ministry of Labour has announced that underground mines will be the subject of a safety blitz for the remainder of 2012.

The MOL says that “In November and December, Ministry of Labour mining inspectors will check on hazards involving systems used to transfer ore (rock containing metal or minerals) inside underground mines. Hazards can lead to injury and death of workers.”

According to the MOL, the inspectors will check that:

• “Adequate procedures are in place and being used to protect workers from hazards.
• Water is being controlled to prevent hazards.
• Equipment is well designed and maintained in good condition.
• Workers are warned of hazards.”

The MOL bulletin announcing the blitz may be accessed here.

An employer struggling with how to comply with a Ministry of Labour inspector’s safety compliance order cannot expect the MOL to identify ways for it to comply, the Ontario Labour Relations Board has held.

The inspector issued an ergonomic compliance order requiring the employer to ensure that wheeled book cases used for book fairs were moved in a way that did not endanger the employees. The inspector decided that the “push forces” required to move the book case up the ramp were greater than permitted in ergonomic data known as “Snook Tables”.

The employer argued that the inspector had “refused to identify ways or means” for the employer to comply with the order. The OLRB decided that the inspector “was under no obligation to do so”. The inspector identified the problem, and it was for the employer to “derive a compliance plan that is most sensible for its operations”.

The employer also argued that there were no ergonomic thresholds set out in the regulations under the Occupational Health and Safety Act, and that the inspector had simply relied on “her professional judgement, as an ergonomist”. The OLRB disagreed, holding that the inspector had based her compliance order on a violation of section 45(a) of the Industrial Establishments regulation under the Occupational Health and Safety Act which requires that materials be moved in a way that does not endanger the worker. There was a legal basis for the compliance order.

The OLRB therefore rejected the employer’s request to suspend the operation of the compliance order pending a full hearing of the employer’s appeal.

There appears to be a trend towards Ministry of Labour inspectors issuing more ergonomic compliance orders, which can often be difficult to comply with. This case demonstrates that the employer, not the Ministry, will be tasked with finding a way to comply with the order.

Scholastic Book Fairs Canada Inc. v. Aguilar, 2012 CanLII 49789 (OLRB)

Employers faced with costly Ministry of Labour compliance orders, that have not been issued to competitors, are often concerned that the orders would put them at competitive disadvantage.

In a recent decision, the Ontario Labour Relations Board has rejected an employer’s argument that a Ministry ergonomist’s order should be suspended because of competitive disadvantage.

The Ministry ergonomist accompanied a Steam Whistle Brewing driver on a delivery route and observed him unloading product, including lowering a 50 kg keg down a flight of stairs, walking backwards and partially supporting the key with his thighs.

The ergonomist issued a number of compliance orders to the employer that it appears to have believed would hamper its ability to deliver product efficiently.

Steam Whistle argued that the compliance orders would put it at competitive disadvantage compared with other craft breweries who were not subject to similar compliance orders. 

The OLRB stated,

“To my mind, the question of competitive disadvantage ought not to be a factor in assessing prejudice for the purpose of a suspension request.  In almost every situation in which an Inspector makes an Order under the Act, the recipient of that Order will be in the position to assert that one of its competitors is now more advantaged than it, and therefore has the benefit of a competitive advantage.  Accordingly, if competitive disadvantage were to be a significant factor in a suspension request application, every Order made by an Inspector would be subject to suspension as a matter of course.  In any event, it has not been asserted by Steam Whistle that the cost of complying with the Orders is so significant that it would make a meaningful difference in its ability to compete with its competitors.”

The moral of this case is likely that employers should take proactive steps to avoid issues arising that could lead to costly Ministry compliance orders. The “competitive disadvantage” argument, without more, will not succeed.

Johnson v Steam Whistle Brewing, 2012 CanLII 47332 (ON LRB)

Although “officially induced error” – being misled by authorities – is a defence to many types of charges including those under the Occupational Health and Safety Act, it is rarely used successfully like it was in a recent case.

While not an occupational health and safety case, the decision will be of interest to safety professionals and employers.

The defendant was under a Prohibition Order barring him from driving any “motor vehicle” in Canada for a period of 12 months.  While operating an “E-bike”, an electric bicycle, he was stopped by police.  He was charged with breaching his Prohibition Order. The court accepted his testimony that he had contacted various police forces to ask whether operating the E-bike would violate his Prohibition Order and was told by a Toronto police officer that it would not.  The court found that the police officer’s advice was in error: in fact, the operation of the E-bike did violate the Prohibition Order.

The court stated that in order to establish the defence of officially induced error, a defendant must prove that:

-the error was one of law or mixed fact and law – not of fact only

-the defendant actually considered the legal consequences of his actions (he did not simply assume that his conduct was legal)

-the defendant obtained advice from an appropriate public official

-the public official’s advice was reasonable

-the advice was erroneous

-the defendant relied on the advice

Here, the defendant had satisfied all of these factors.  The error was one of law (whether operating the E-bike would violate his Prohibition Order); the defendant had thought about whether it was legal for him to operate the E-bike while under the Prohibition Order; he obtained advice from a police officer, an appropriate public official; the police officer’s advice was reasonable, given that E-bikes are a relatively new phenomenon; the advice was erroneous; and the defendant relied on the advice when he set out for his bike ride.

Although the officially induced error doctrine is rarely applied, employers should keep it in mind when seeking advice from Ministry of Labour inspectors.  If an employer seeks advice from an inspector regarding the Occupational Health and Safety Act or regulations, reasonably relies on that advice, and the advice turns out to be incorrect, the employer – if charged – may be able to raise the defence of officially induced error.  For that reason, employers should carefully document all such advice received from government safety inspectors.

R. v. Kulbacki, 2012 ONCJ 532 (CanLII)

Ontario employers have a positive obligation to post a number of items on their employee bulletin boards, and a failure to do so can lead to tickets, compliance orders, or in fewer cases, charges and fines.

The Ministry of Labour has recently updated a document called “Posting and Training Requirements”, which states that employers must post the following documents in each workplace:

-Occupational Health and Safety Act

-Health and Safety Policy

-Workplace Violence Policy*

-Workplace Harassment Policy*

-Names and work locations of joint health and safety committee members (for workplaces requiring a JHSC)

-WSIB poster, “In Case of Injury–1234″

*Note that a workplace violence policy and workplace harassment policy need not be posted in workplaces with five or fewer regularly employed workers.

Leaving aside occupational health and safety and WSIB posting requirements, employers must also post the Ministry of Labour’s poster, “What You Should Know About The Ontario Employment Standards Act”.

And, of course, if the employer receives Ministry of Labour compliance orders under the Occupational Health and Safety Act, the orders must also be posted for a certain period of time.

It is strategically important for employers to ensure that all of the above documents are posted in the workplace.  When Ministry of Labour inspectors visit, they often look at the bulletin board.  Complying with all the posting requirements will send a positive signal about the employer’s commitment to safety.

The Ministry of Labour’s “Posting and Training Requirements” document can be accessed here.

An Ontario Ministry of Labour inspector has ordered a sleep laboratory to provide personal protective equipment to employees because of the safety risk posed by patients who may be resistant to antibiotics.  And the Ontario Labour Relations Board has rejected the employer’s request to suspend the order.

The MOL inspector issued the order under the “general duty” clause of the Occupational Health and Safety Act after a worker complained about working with patients who were resistant to antibiotics and may have a contagious form of “Methicillin-Resistant Staphyloccoccus Aureus” or MRSA.  The inspector’s order required the employer to ensure that “workers have measures and procedures for the wearing of Personal Protective Equipment . . .”

The employer asked the OLRB to suspend the order pending the employer’s appeal of the order.  It argued that it already had adequate policies in place  – which had been approved by the Ministry of Health – and had provided appropriate training.  The OLRB, in refusing to suspend the order, noted that the employer admitted that MRSA posed a hazard, and the suspension of the order could endanger a worker.

This case demonstrates the broad powers of MOL inspectors to order employers to take positive steps to ensure the safety of workers, and how workers’ safety concerns that are not addressed internally can lead to MOL visits and orders.

Accqcorp v. Matthie, 2012 CanLII 38160 (OLRB)

The Ontario Ministry of Labour has released its “system priorities” for 2012-13.

In its “Introduction to Safe At Work Ontario Sector Plans, 2012-2013“, the Ministry of Labour states:

Employers should be aware that Ministry of Labour inspectors will be paying particular attention to these issues in the next year.

A Ministry of Labour inspector’s compliance order under the Ontario Occupational Health and Safety Act should not be suspended even though the order only restated the employer’s obligations under the Act, the Ontario Labour Relations Board has ruled. However, the employer may have “lost the battle but won the war” if it can later prove that the inspector’s order was based on an incorrect factual assumption.

The Ministry of Labour inspector had ordered the employer, which operated a restaurant, to provide “permanent platforms . . . with access by a fixed, (a) stair; or (b) access ladder” where frequent access was required to “equipment elevated above or located below floor level”.  The equipment in question was a mezzanine above a freezer.  That order simply restated the language of Regulation 851 under the Occupational Health and Safety Act.

The Ontario Labour Relations Board noted that the inspector had not indicated in writing that frequent access was required to the mezzanine.  In fact, the inspector had not “made a determination” that employees accessed the mezzanine frequently, which determination was required for the employer to be obligated to install the ladder or stairs.

Nevertheless, the OLRB did not suspend the operation of the compliance order, because, “This Board cannot suspend the operation of the Act or its regulations.”  The OLRB essentially left it up to the employer, stating that if the employees were indeed having “frequent access” to the mezzanine, then the employer must provide a stair or access ladder.  The employer, which appealed the compliance order, would have the opportunity to later argue to the OLRB that its employees did not have “frequent access” so that neither a ladder nor stairs were required.

This is Pyrrhic victory for the Ministry of Labour, as it effectively permits the employer to not install a fixed ladder or stair if the employer maintains that, factually, employees do not have “frequent access”.

The lesson for employers is that if you receive a “bald” Ministry of Labour compliance order that only restates the Act or regulations but is based on an incorrect factual assumption by the MOL inspector, the employer may elect to decide that it is already in compliance with the order and does not need to make any costly changes.  Such decisions should be made carefully, though, because if the facts don’t support the employer’s position, the inspector may reattend and write a more specific order or, worse, lay charges for violation of the earlier order.

Moxie’s Grill and Bar v. Thompson

Companies and individuals charged under the Ontario Occupational Health and Safety Act may ask the prosecutor to provide the Ministry of Labour inspector’s criminal record, an Ontario court has ruled.

And the prosecutor, when faced with such a request, must carefully consider it.

The case arose out of a grievance filed by the Ontario Public Service Employees’ Union after a Ministry of Labour prosecutor provided an inspector’s criminal record to a defendant facing Occupational Health and Safety Act charges.  (The Supreme Court of Canada held in 2009 that criminal prosecutors were required to disclose criminal records of police investigators if the record could reasonably impact on the criminal proceedings).  The Ministry of Labour inspector had previously been convicted of assault.  The union filed a policy grievance against the practice of providing inspectors’ criminal records to defence counsel, and argued that defence counsel should be required to bring a special motion to the court for an order requiring the police to produce the criminal record.

The Ontario Divisional Court, on appeal from the Grievance Settlement Board, disagreed with the union.  The court stated that a Ministry of Labour inspector, like a police officer, has the role of “investigator, accuser and witness” and that “there is no reason to think an inspector’s criminal record will have less bearing on the right to make full answer and defence in a regulatory proceeding [such as OHSA charges] than a police officer’s record in a criminal prosecution”.  As such, defence counsel was entitled to request the inspector’s criminal record, and the prosecutor was required to consider the request.  However, the court ordered prosecutors to follow a process including notice to the inspector whose criminal record has been requested.

Ontario v. O.P.S.E.U., 2012 CarswellOnt 6293 (Div. Ct.)

The Ontario Labour Relations Board has refused to permit a teachers’ union to expand a safety appeal to several schools where the Ministry of Labour inspector had dealt with the issue at only one school.

The inspector had issued an order at one school, requiring the school board to re-inspect the premises for asbestos.  The teachers’ union asserted that the order was “inadequate”.

The teachers’ union appealed the inspector’s order and asked the Ontario Labour Relations Board to require the school board to assess its asbestos-management program at all schools in the board.

The OLRB effectively held that an appeal of an inspector’s order may deal with only the issues already put to the inspector.  The inspector must actually turn his or her mind to the issue and have the opportunity to conduct an inspection, before the union can advance an appeal in respect of that issue. Here, the inspector was involved at only one school, so it was not appropriate to expand the appeal to deal with other schools.

The case is interesting because it indicates that employers can insist that where employees or a union appeal an inspector’s order or refusal to issue an order, the appeal should deal only with issues actually put to the inspector and locations visited by the inspector.

Elementary Teachers’ Federation of Ontario v. Kawartha Pine Ridge District School Board, 2012 CanLII 31549 (O.L.R.B.)

The Ontario Ministry of Labour has released a safety poster that employers are now legally required, under the Occupational Health and Safety Act, to post in their workplaces.  The MOL says that its inspectors will “begin enforcing the requirement” on October 1, 2012.

The poster, which is available in 17 languages, is called “Health and Safety at Work – Prevention Starts Here”. It may be downloaded and printed from the MOL’s website (click here).  The MOL had previously released a draft of the poster for consultation.

Section 25(1)(i) of the Occupational Health and Safety Act requires employers to “post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers”.  The MOL states that the poster is such “explanatory material prepared by the Ministry”, and therefore it must be posted.

On its website, the MOL says, “The poster summarizes workers’ health and safety rights and responsibilities and the responsibilities of employers and supervisors. It also reminds employers that they must not take action against workers for following the act or for raising workplace health and safety concerns, and seeking enforcement of the OHSA. The poster encourages workers to get involved in health and safety and explains when and why to contact the Ministry of Labour.”

The poster also sets out a toll-free number for employees to call the MOL.

The creation of the poster was one of 46 recommendations of the Expert Advisory Panel on workplace safety, which released its recommendations to the Ontario Minister of Labour in December 2010.

Ontario employers should put up the poster as soon as possible.  Inspectors will look for it when they arrive at workplaces.  By posting the poster, employers send a signal to MOL inspectors that they are on keeping on top of health and safety law developments.

According to the Ministry of Labour, new and young workers are four times more likely to be injured during their first month of employment than at any other time.

As the summer season is now upon us and many young workers are poised to begin summer jobs, the Ministry of Labour has announced an enforcement blitz that will target workplaces where new and young workers are employed.  The blitz will focus on:

• New and young workers aged 14 to 24 years
• New workers that are 25 years and older and who are on the job for less than six months or reassigned to a new job

The blitz will focus on ensuring that young workers:

• Are protected by required safety measures, equipment and procedures to prevent injuries
• Are properly instructed, trained and supervised on jobs
• Meet minimum age requirements.

Ministry of Labour inspectors will be specifically targeting workplaces that tend to employ a high proportion of young workers such as retail stores, wholesalers, restaurants, tourism and recreational facilities, vehicle sales and service centres, hospitals, nursing homes, retirement homes, agencies that provide services for the developmentally challenged, low-rise construction projects, municipalities and workplaces involving farming operations, logging and transportation.  Inspectors will also check workplaces such as golf courses, camps, temporary agencies amusement parks, and workplaces where workers are engaged in activities such as landscaping.

For more information, see:   http://news.ontario.ca/mol/en/2012/04/safety-blitz-helps-protect-new-and-young-workers-1.html

Employers who deal with Ontario Ministry of Labour inspectors may wish to review the Ontario government’s Regulator’s Code of Practice.  That Code applies to MOL inspectors and other government compliance staff, and sets out principles that the inspectors and other compliance staff are expected to follow.

Interestingly, the Code states that government inspectors should be “compliance-focused” rather than “enforcement-focused”, which in the context of MOL inspectors, appears to mean focused on helping employers maintain a safe working environment rather than focused on laying charges against employers under the Occupational Health and Safety Act.

The Code states that a compliance-focus requires the inspector to “focus on the objectives of regulatory law and policy and then consider the most innovative, efficient and effective method of achieving compliance.”

In an apparent recognition of the challenging economic climate for many Ontario employers, particularly those in the manufacturing industry, the Code states that government inspectors and regulators should do their jobs in a way that “allows businesses to better focus on increasing competitiveness and economic growth while complying with Ontario’s rules and regulations”.

The Code goes on to suggest that government compliance staff, including MOL inspectors, should classify employers into four categories, and treat them as follows:

The Ontario Ministry of Labour has released a Fact Sheet that provides guidance to workers and employers on the safety-reprisal provisions of the Ontario Occupational Health and Safety Act. Those provisions permit a worker to complain to the Ontario Labour Relations Board that he or she has been disciplined, fired or otherwise mistreated because he or she sought the protection of the OHSA.

The Fact Sheet touches on recent changes to the OHSA that impact on reprisal complaints:

-Ministry of Labour inspectors are now able to file reprisal complaints on behalf of a worker with the worker’s consent (presumably workers who are worried about their job security will be more likely to advance a reprisal complaint if the MOL filed and is monitoring it)

-small employers (those with fewer than 50 workers) can now obtain free representation from the Office of the Employer Adviser in mediations and hearings at the OLRB  dealing with reprisal complaints

-Non-union workers can now obtain free advice and representation from the Office of the Worker Adviser in reprisal proceedings at the OLRB

The Ministry of Labour Fact Sheet is online at http://www.labour.gov.on.ca/english/hs/topics/reprisal.php

The Ontario Ministry of Labour has reported that its safety inspectors conducted more than 60,000 visits to workplaces from April through to December 2011.

The inspectors visited 32,467 workplaces, for an average of 2 visits per workplace visited.

The MOL says that the inspectors issues 103,965 compliance orders, averaging almost 3 compliance orders per workplace visited.

The MOL has approximately 400 inspectors, meaning that inspectors make, on average, 200 visits per year.

See http://www.labour.gov.on.ca/english/hs/sawo/pubs/issue10.php

Employers appealing Ontario Ministry of Labour compliance orders under the Occupational Health and Safety Act are entitled to notes made and photographs taken by the MOL inspector during his or her site visits, the Ontario Labour Relations Board has ruled.

Employers charged with offences under the OHSA are used to obtaining full “production” of the MOL’s file; now employers facing compliance orders are entitled to a level of documentary production from the MOL.

The appeal in question deals with whether Dollarama must ensure that workers in the receiving area and handling stocks in the stock room of its stores, wear “safety foot protection”, or whether it was sufficient for Dollarama to require only workers operating a pump jack to wear safety toe caps.

Dollarama appealed the MOL inspector’s compliance order.  Dollarama then asked the OLRB to order the MOL to provide all notes made and photographs taken by the inspector during site visits, so that Dollarama could review and possibly use those notes and photographs to challenge the compliance order.

The MOL opposed the request for the inspector’s notes and photographs, arguing that because the OHSA provides that inspectors are not “compellable” as witnesses, inspectors cannot be compelled to produce their notes.

The OLRB disagreed with with MOL, holding that non-compellability of an inspector as a witness does not mean that the inspector can withhold his or her notes.  Dollarama was entitled to the notes and photographs, as part of Dollarama’s entitlement to pre-hearing production of documents from the MOL.

This interesting decision provides another arrow in the quiver of employers appealing MOL orders.  By requesting – and obtaining – the MOL inspector’s notes and photographs, the employer may be able to show weaknesses in the MOL’s case, thereby strengthening the employer’s argument that the compliance order should be set aside.

Dollarama v. Marcelo, http://canlii.ca/en/on/onlrb/doc/2012/2012canlii12602/2012canlii12602.html

The Ontario Ministry of Labour has put up a podcast entitled, “How the Ministry of Labour Investigates Incidents”.  A transcript of the podcast, as provided by the MOL on its website, is as follows:

HOW THE MINISTRY OF LABOUR INVESTIGATES INCIDENTS

Hello, and welcome to another MOL Radio podcast.

Today, we’re going to give you a quick overview on how our inspectors investigate incidents that have resulted in either a critical injury or fatality.

Employers are required, by law, to notify the Ministry of Labour by phone or direct communication when a critical injury or a fatality occurs in their workplace. Once the incident is reported, an inspector is dispatched immediately to the event location. The inspector will investigate to determine what happened, and to ensure that similar incidents do not occur.

Once the inspector arrives at the worksite, the primary concern is that no one else is injured. The inspector, working closely with fire, police and other agencies immediately checks to make sure that the site is safe, and that all immediate hazards are addressed and the site is secure.

If needed, a Stop Work Order is issued, so that work cannot resume at the site until the inspector determines that all workers are safe.

The inspector introduces him or herself to the site supervisor or a person in authority. The inspector then asks to meet with management representatives, a Joint Health and Safety Committee worker member, or a health and safety representative where appropriate.

As with any investigation, a thorough gathering of evidence and review of facts is needed to determine what exactly happened, and to ensure that similar incidents do not take place.

The inspector begins to gather information and analyze the evidence. The collection of evidence includes, among other things:
• Conducting interviews with workers and witnesses;
• Inspecting specific processes, areas, or activities related to the incident;
• Requiring the production of information and documents such as equipment maintenance records, worker training records and certifications;
• Requiring the testing of any equipment related to the incident;
• Documenting any concerns in written form;
• Taking photographs or measurements that may be required to verify observations; and
• Issuing orders that address specific hazards or contraventions and stop work orders.

As part of the investigation, the inspector may consult with specialized Ministry of Labour staff, including engineers, industrial hygienists, ergonomists, medical consultants and infection control specialists. The Ministry may also consult with external experts, as required.

If, during the course of the investigation, a hazard is identified that may affect the particular industry, the ministry may issue a Hazard Alert and distribute it through various channels, including inspectors. The alert is also posted on the ministry’s website.

The Ministry of the Attorney General also provides legal assistance throughout the investigation, including the preparation of warrants and the review of prosecution briefs.

Investigations of workplace incidents are thorough, and the evidence collected is very detailed.

Under the Occupational Health and Safety Act, the ministry has up to one year to complete an investigation. Once the evidence is collected and analyzed, a report is drafted. The report is then reviewed by the Regional Director and the ministry’s Legal Branch.

If charges under the Occupational Health and Safety Act are warranted, they must be laid within one year of the date of the event. If no charges are contemplated, the file is closed.

Ministry investigations are thorough, and may take some time to complete. Aside from finding out what exactly happened, our investigations try to ensure that similar incidents don’t happen again.

That’s it for this segment on MOL Radio.

Thank you for listening.

The podcast is available at http://www.labour.gov.on.ca/english/podcasts/index.php.

The Ontario Ministry of Labour has announced the details of its March 2012 safety blitz on construction sites.

The MOL states that:

“Beginning March 1, inspectors from the Ministry of Labour will visit construction projects employing workers in high-rise formwork, low-rise formwork and masonry, siding and built-up roofing work. The inspections will help ensure that:

-work areas are safe from hazards that cause dangerous slips, trips or falls
-workers are using fall protection systems properly and equipment such as ladders, platforms and scaffolds.”

The MOL’s news release on this blitz may be found at: http://news.ontario.ca/mol/en/2012/03/making-construction-sites-safe-for-workers.html.

The Ontario Ministry of Labour has released the results of recent inspection blitzes dealing with racking and storage, underground mining ventillation, and infection prevention and control.

With respect to racking and storage, the MOL notes that from 2006 to 2010, three workers died and 45 others were seriously injured in racking and storage incidents.  In its November 2011 blitz, MOL inspectors conducted 1,167 visits to 977 workplaces and issued 3,063 compliance orders, including 118 stop work orders.  The most common compliance order required employers to maintain racking and storage equipment in good condition, suggesting that the MOL found racking defects such as dents in rack supports.

With respect to underground mining ventillation, the MOL notes that between 2005 and 2009, 176 workers died and another 36 workers developed occupational diseases related to respiratory illnesses in the mining sector.  In October and November 2011, MOL inspectors conducted 61 visits to 36 underground mines and issued 207 compliance orders under the OHSA, including 22 stop work orders to underground mines.  The most common specific compliance order required employers to prepare a plan to comply with an inspector’s order.

With respect to infection prevention and control, the MOL states that in 2010, more than 1,150 health care workers filed infectious disease claims that were approved by the Workplace Safety and Insurance Board.  In November 2011, MOL inspectors conducted 116 visits to 100 health care workplaces and issued 192 compliance orders.  The most common specific compliance order was to perform at least an annual review of health and safety procedures.

The blitz results, and information on the MOL’s “next steps” in these three areas, may be viewed at http://www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report36.php, http://www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report35.php, and http://www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report34.php.

The Ontario Ministry of Labour has announced that in its February “blitz”, MOL inspectors will look for hazards in material handling – in particular, hazards that can lead to musculoskeletal disorders.

On its website, the MOL states:

“Every day we use our muscles, tendons, ligaments and joints to lift, carry, sit, stand, walk, move and work in a variety of ways. However, sometimes these tasks or the way we do them can put too much demand on our bodies, causing pain and discomfort. In addition, it may lead to a more serious injury called a musculoskeletal disorder (MSD). Working shouldn’t hurt!”

The MOL website contains resources such as information on safe lifting: http://www.labour.gov.on.ca/english/hs/topics/pains.php.

An Ontario Justice of the Peace has rejected a roofing company’s argument that a Ministry of Labour inspector’s request that the company provide training records, employee records and invoices, and the WSIB Form 7 was an “unreasonable search and seizure” under the Canadian Charter of Rights and Freedoms.

The case involved a roofing employee who fell and injured himself.  His co-workers claimed not to have seen the fall, and the injured worker claimed to have no memory of it.  The company was charged with eight offences under the Ontario Occupational Health and Safety Act including charges relating to fall arrest equipment and training.

The Justice of the Peace held that the requested documents were pre-existing business records over which the company had a low expectation of privacy.  Further, the OHSA “envisioned” that the employer would produce those documents for inspection or examination if requested by an MOL inspector.

The Justice of the Peace also held that the statutory compulsion to file a Notice of Death or Critical Injury with the MOL, as required by section 51 of the OHSA did not constitute an unreasonable search and seizure.

The decision suggests that MOL inspectors’ powers to collect routine safety documents from employers in the course of an investigation are not, at least in typical cases, restricted by the search and seizure provisions of the Charter; however, the decision also confirms that once an MOL inspector is no longer “investigating” an accident but is rather gathering evidence to support charges, the inspector will no longer be able to use his or her statutory power to collect documents, but instead will be required to obtain a search warrant.

The decision, Ontario (Ministry of Labour) v. W. Roofing Ltd., may be read at: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj494/2011oncj494.html

The Ontario Labour Relations Board has held that an engineer’s report that did not use the words, ”not likely to endanger a worker”, did not satisfy a compliance order.

A Ministry of Labour inspector had ordered four companies, after accidents at various job sites that involved the operation of tower cranes, to provide a “section 54(1)(k)” professional engineer’s report stating that the cranes were not likely to endanger a worker.  The companies unsuccessfully tried to work out an “industry solution” with the MOL.

All four companies retained the same engineering firm, Burrell & Associates.  An engineer with that firm provided four reports.  One of the reports stated that the tower crane was now operating normally and could be placed back into service; another report stated that “turntable bolts are still suitable for the operation of the crane until new bolts are installed”; and a third report stated that “the crane capacity in third gear is adequate for the intended loads on this project . . .”  None of the reports stated that the cranes were “not likely to endanger a worker”, the language used in s. 54(1)(k) of the OHSA.

The MOL refused to accept that the engineer’s reports satisfied the obligation under s. 54(1)(k) to produce a report that the tower cranes were “not likely to endanger a worker”.  The companies appealed to the Ontario Labour Relations Board.

The companies argued that by requiring the precise words “not likely to endanger” in the engineer’s report, the MOL was superseding the judgment of a professional engineer and may discourage engineers from providing reports.  The companies also argued that under section 54(1)(k), the professional engineer – not the MOL inspector – should make the decision as to whether the equipment could be used safely.

The OLRB disagreed.  It held that section 54(1)(k) required the professional engineer to expressly state in his report whether the equipment is or is not likely to endanger a worker.  The OLRB stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

Employers and professional engineers should take note.  The practical effect of this decision is that when ordered to obtain a section 54(1)(k) report, an employer should seek out a professional engineer with significant expertise in the equipment or machinery to which the order relates, so that the engineer feels comfortable writing that it is “not likely to endanger a worker”.

Hardwall Construction Ltd. et. al: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii34961/2011canlii34961.html

Employers often ask us whether their employees can be forced to give a statement to an Ontario Ministry of Labour inspector.  A recent decision shows when inspectors cross the line by forcing statements.

A supervisor, Ms. Lootawan, was charged with three offences under the Ontario Occupational Health and Safety Act, including giving false information to an inspector.  The charges arose out of a workplace accident. 

The MOL inspector had issued two Orders requiring the supervisor to give a statement.  After the first Order, the supervisor wrote the inspector declining to give a statement and invoking her right to silence.  The inspector’s form containing the second order warned her that if he refused to give a statement, she could face either imprisonment or a $25,000.00 fine or both. She then went ahead and gave the statement.

The court decided that the second Order to give a statement violated the supervisor’s constitutional right against self-incrimination and her right to be secure against unreasonable search and seizure. 

The court noted that the inspector, when he took the statement, already had reasonable and probable grounds to charge the supervisor under the OHSA, which triggered the requirement to caution the supervisor that she could be charged and to invite her to obtain advice from a lawyer.  If the lawyer was not immediately available, the supervisor had the right to wait a reasonable amount of time to speak with the lawyer.

As a result, the court ordered that the supervisor’s statement could not be used as evidence at the trial of the OHSA charges against her.  The statement was thrown out.

Government safety inspectors do not have an unlimited right to compel employees to give statements.  When the inspector has “reasonable and probable grounds” to lay charges against an employee, the employee has the right to refuse to give a statement and the right to speak with a lawyer.  Supervisors and employees who are at risk of charges should obtain legal advice to ensure that their rights are protected when the MOL comes calling.

The decision may be read at: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj316/2011oncj316.html