1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Canadian Law Blog Awards recognizes Dentons’ Occupational Health & Safety Law Blog as one of Canada’s top legal practice group blogs in 2017

We are delighted to tell you that the Canadian Law Blog Awards has named Dentons Canada’s Occupational Health and Safety Law blog as one of the best legal practice group blogs in Canada in 2017.

See the full list of winners here.

The Canadian Law Blog Awards states, “Each year we select three practice dedicated blogs from larger law firms that deliver helpful commentary on a select business industry or legal challenge. Here are the publications that stood out in 2017” – and ours was one of the three.

We pride ourselves on bringing you timely updates on health and safety caselaw and other developments in Canada, and we plan to continue doing so in 2018.

Thank you for your support of this blog, and please keep reading!  If you think we should cover any particular topics or cases in our blog posts in 2018, just let us know. We are always happy to hear from our readers.

Adrian Miedema and Cristina Wendel, Editors

Canadian Law Blog Awards recognizes Dentons’ Occupational Health & Safety Law Blog as one of Canada’s top legal practice group blogs in 2017

A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

In what can only be described as a victory for common sense, an arbitrator recently upheld the discharge of a 27 year employee who was found responsible for spiking the office water cooler with chlorine bleach.

On September 12, 2011, an employee reported to his supervisor that the water from the office water cooler had a “strong chlorine smell” and a “very hard taste”. In reviewing the surveillance video on the day in question, the Grievor is seen exiting his office with an empty water cooler jug, entering the chemical storage room and then leaving the chemical storage room and walking back to his office with a chlorine bleach jug in his hand. As he re-enters his office, the Grievor is seen placing his hand on the cap of the chlorine bleach jug. The Grievor later exits his office with the chlorine bleach jug in his hand. He ultimately returns to his office with a full jug of water for the cooler.

When initially confronted about the situation, the Grievor denied that he had caused the contamination of the water cooler but volunteered no information about why he had obtained the bleach from the chemical storage room. However, in his subsequent meetings with investigators and through his testimony at the hearing, the Grievor’s story evolved to the point where he alleged that he had poured the bleach into two cups – one to be used later in the day to clean some shelves in his office and the other to pour into a dumpster located outside his office in order to kill its odour.

At the hearing, the Grievor’s supervisor rejected the Grievor’s explanation noting that it made no sense for the Grievor to clean the shelves since they were not dirty and they were being dismantled to be taken out of the building. He further testified that he never saw the Grievor use a cup to pour chlorine breach into the dumpster.

In his decision, the Arbitrator found that the Grievor’s testimony lacked credibility. In the Arbitrator’s view, “the Grievor’s many actions, as witnessed on the video and as described in his testimony, when taken together simply defy logic and do not make sense”. As a result, the Arbitrator ruled that it was more likely than not that he was the cause of the chlorine bleach contamination of the office drinking water cooler. With respect to penalty, the Arbitrator held that “…the level of mistruths and evasiveness displayed by the employee, as well as his failure to take responsibility for his actions, irreparably harmed the employee-employer relationship.” There was therefore no basis for the Arbitrator to interfere with the Employer’s decision to dismiss the Grievor for cause.

This case is a good reminder of the importance that credibility will play when an adjudicator is asked to determine which version of events is more likely to have occurred. In conducting investigations, employers should ensure that they take detailed statements from those involved so as to “nail down” the alleged offender’s story. Should the alleged offender later change his or her story, the employer will be in a good position to impeach the employee’s credibility.

Knox v. Treasury Board (Canadian Food Inspection Agency), 2017 PSLREB 40.



A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

The death of an employee due to the collapse of trench walls: Superior Court confirms the employer’s committal for trial for manslaughter

In the recent decision Fournier c R.[1], the Superior Court of Quebec confirmed that an employer’s violations of health and safety legislation can be the underlying unlawful act on which is based a criminal charge of manslaughter.

On April 3, 2012, Mr. Fournier, who is the owner of an excavation firm, was replacing a sewer line with one of his employees when the trench walls collapsed, killing the employee. As a result, Mr. Fournier was personally charged with criminal negligence causing death[2] and with manslaughter. For both offences, the maximum punishment is imprisonment for life.

Following the preliminary inquiry, the accused was committed to trial on both charges. While he did not contest the part of the decision relating to the offence of criminal negligence causing death, he challenged his committal to trial for the charge of manslaughter.

In this case, the charge of manslaughter is based on section 222(5)a) of the Criminal Code which provides that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. At the preliminary inquiry hearing, the prosecution led evidence to show that while he was in charge of the work to replace the sewer line, Mr. Fournier did not solidly shore the banks of the trench with quality material in accordance with the plans and specifications of an engineer as required by section 3.15.3 of the Safety Code for the construction industry (the “Safety Code”). According to section 236 of An Act respecting occupational health and safety (the “Act”), the failure to fulfill this obligation is a strict liability offence. The judge presiding at the preliminary inquiry accepted the Crown’s argument that this failure could constitute the underlying “unlawful act” referred to in section 222(5)a) of the Criminal Code.

Mr. Fournier challenged this decision by way of judicial review, arguing that a strict liability offence cannot constitute an “unlawful act” as per section 222(5)a) of the Criminal Code.

The Superior Court refused Mr. Fournier’s argument and rather concluded, following a thorough review of the relevant case law and doctrine, that the underlying unlawful act in a charge of manslaughter can be a strict liability offence, including one related to occupational health and safety.

It clarified, however, that in such circumstances, and unlike a typical prosecution under occupational health and safety legislation, it is not the accused who bears the burden to prove that he has taken all the reasonable steps in the circumstances to avoid or prevent the occurrence of the prohibited act. Rather, it is for the Crown to prove, beyond a reasonable doubt, that the conduct of the accused constitutes a marked departure from that of a reasonable person. More specifically, to satisfy its burden of proof, the prosecution must establish all of the following elements:

  1. The accused committed a strict liability offence which was objectively dangerous;
  2. The conduct of the accused constituted a marked departure from the standard of a reasonable person in the same circumstances; and
  3. Taking in consideration all the circumstances of the case, a reasonable person would have foreseen the risk of bodily harm.

In application of the above-mentioned principles, the Superior Court found that there was sufficient evidence in this case to confirm the committal to trial. According to the judgment, the Crown offered prima facie evidence for each of the three criteria: 1) the failure to solidly shore the banks of a trench is a strict liability offence according to the Act and the Safety Code and is also objectively dangerous conduct; 2) the breach of this obligation is a marked departure from the standard of a reasonable person in the same circumstances; and 3) a reasonable person would have foreseen the risk of not solidly shoring the banks of the trench.

In conclusion, this decision should bring to the employers’ minds the very serious consequences that failure to comply with occupational health and safety obligations can have on their employees, but also on their own life. From now on, employers must be aware that if an employee dies in such context, not only can they be charged with criminal negligence, but also with manslaughter.

[1] 2016 QCCS 5456

[2] The charge of criminal negligence causing death is based on section 219 of the Criminal Code on the alleged failure of Mr. Fournier to respect the obligation set out in article 217.1 of the Criminal Code, which provides that “everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” This provision of the Criminal Code has been in force since 2004, but has not been invoked in many prosecutions so far.

The death of an employee due to the collapse of trench walls: Superior Court confirms the employer’s committal for trial for manslaughter

Ontario Bill Proposes to Create “Health and Safety Management System” under OHSA

The Ontario government has introduced legislation that seeks to, among other things, provide for the establishment of employer “health and safety management systems” under the Occupational Health and Safety Act.

If passed, Bill 70, Building Ontario Up for Everyone Act (Budget Measures), 2016, will, among other things, amend the Occupational Health and Safety Act to:

  • Define “health and safety management system” as “a coordinated system of procedures, processes and other measures that is designed to be implemented by employers in order to promote continuous improvement in occupational health and safety”;
  • Permit the Chief Prevention Officer (“CPO”) to accredit a health and safety management system;
  • Permit the CPO to establish, and amend, standards that a health and safety management system must meet in order to become an accredited health and safety management system;
  • Allow the CPO to give recognition to an employer in respect of one or more of its workplaces upon the employer’s application, if the employer satisfies the CPO that it is a certified user of an accredited health and safety management system in its workplace or workplaces and it meets any applicable criteria as established or amended by the CPO;
  • Authorize the CPO to require any person seeking an accreditation, or who is the subject of an accreditation or recognition, to provide the CPO with whatever information, records or accounts as he or she may require, and authorize the CPO to make such inquiries and examinations as he or she considers necessary;
  • Authorize the CPO to publish or otherwise make available to the public information relating to accredited health and safety management systems and employers given recognition, including the names of the systems and employers; and
  • Require the CPO to publish the standards for accreditation of health and safety management systems and the criteria for recognition of employers promptly after establishing or amending them.

Bill 70 received 2nd reading on December 1, 2016.  Stay tuned for further developments.

The bill, which also contains amendments to a number of other statutes, may be accessed here.

Ontario Bill Proposes to Create “Health and Safety Management System” under OHSA

GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

The Government of Canada has announced that new Occupational Health and Safety regulations under the Canada Labour Code, which are intended to better protect federally regulated workers who use, handle and store hazardous products in the workplace, will be published in Part II of the Canada Gazette.

As we have written about in our previous blog posts, these amendments are part of a national and international initiative to implement the “Globally Harmonized System of Classification and Labeling of Chemicals”, known as “GHS”, which is a worldwide standard of communicating the hazards associated with workplace hazardous chemicals. The Government notes that, in addition to Canada, the United States, Australia, the European Union, and China, among others, are already in the process of implementing the GHS.  Applying an international standard for workplace hazardous chemicals will streamline hazard information among suppliers from many of Canada’s trading partners, which will, among other things, facilitate trade and reduce compliance costs associated with shipment of products across borders.

The Government also notes that the creation of an international standard for the classification and labelling of hazardous workplace chemicals will serve to increase the health and safety of workers in Canada while also improving their overall health and safety of workers by providing clear and consistent information on how to safely use hazardous materials in the workplace.

The amendments are contained in the following 5 Occupational Health and Safety regulations under Part II of the Canada Labour Code:

For the Government of Canada’s announcement, click here.

, ,

GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

New Training and Safety Requirements for Drill Rig Operators in Ontario

The Ontario government has passed amendments under the Occupational Health and Safety Act which provide new technical and operational safety measures and procedures for rotary foundation drill rigs, and require that drill rig operators be trained and certified.

The amendments containing the new drill rig requirements, which have been passed in regulation, will come into effect on July 1, 2016 to allow time for the construction industry to comply.

The Ministry of Labour states in its press release that rotary foundation drill rigs are used for boring holes in soil in order to install foundations or earth retention structures.

Ontario is the only jurisdiction in Canada to implement explicit training requirements for drill rig operators in its health and safety legislation. The Ministry states in its press release that these changes are intended to build on actions that the province is already taking to improve safety for construction workers, including the Working at Heights Training requirements (read our article about this training here). The Ministry says that Ontario’s construction industry has traditionally experienced higher rates of workplace injuries and fatalities than other workplace sectors, and that there were 200 critical injuries in construction last year and 21 fatalities.

The Ministry of Labour’s press release announcing the changes can be found here.

New Training and Safety Requirements for Drill Rig Operators in Ontario

Medical Marijuana in the Workplace

With the recent expansion of legislation permitting the production, sale and use of marijuana for medical purposes, employers should begin to think about crafting a policy which addresses medical marijuana use in their workplace.

For example, the smoking of regular cigarettes is not permitted in buildings or near entrances and exists to buildings.  Employees who want a smoke usually need to head further afield during their breaks.  But is it proper to ask the same of employees who are smoking medical marijuana and may have a disability?  Is it proper to make them smoke in the presence of others, so that their disability is no longer a private matter?  Is it proper to have regular smokers ingesting medical marijuana smoke if all smokers are required to smoke in the same area?
These are but some of the questions which an employer should be considering  when drafting a policy to address the use of medical marijuana in the workplace.  Other questions to be considered include the following:

  • Should a designated room be provided on the premises in which medical marijuana users can smoke on a private and confidential basis?
  • What rules will apply to the employee?  Should he or she be required to cease working and report to a manager in the event of feeling unwell after medicating?  Should he or she be required to refrain from operating a motor vehicle or machinery for work purposes after medicating?
  • What documentation will be required from the employee’s treating healthcare professional?
  • What steps will be taken by the employer in order to ensure that the needs of the employee are being met, without compromising the employee’s ability to perform his or her job, or the safety of the workplace?
  • Who at the company must know about and approve an employee’s use of medical marijuana in the workplace?  What steps will be taken in order to otherwise keep that information confidential?

There are no guidelines in place to assist employers with drafting policies such as this, although reference to policies which provide for accommodations to disabled employees may be a good starting point.  The important thing for an employer is to be aware of the fact that it is best to have a policy in place in advance of these questions being raised by an employee seeking to medicate at work, and that we can assist with ensuring that your workplace policy strikes the proper legal balance with respect to meeting the needs of all potentially affected individuals.

This article originally appeared on the Dentons blog, employmentandlabour.com.

Medical Marijuana in the Workplace

Arbitration board imposes 24-hour firefighter shift, despite employer’s safety concerns

An interest arbitration board has imposed a 24-hour shift for firefighters employed by the Ontario City of St. Catharines, despite the city’s strenuous objections based largely on safety concerns.

The City and firefighters’ union had resolved all terms of their collective agreement except whether there should be 24-hour shifts and one other issue.  The union wanted the 24-hour shifts and the City wished to maintain its current shift schedule (10 hour day shifts and 14 hour night shifts).

The City called an expert on sleep medicine and disorders.  The expert focused on the dangers of sleep deprivation and fatigue. His opinion was that the current “10/14” shift schedule was substantially safer than a 24-hour schedule.  The evidence, however, was that over 82% of firefighters in Ontario, from “services of all sizes”, have “adopted and/or adapted to the 24-hour shift”, and 70% of firefighters in the United States.  A number of other Ontario cities, including Toronto, used 24-hour shifts which had been “freely bargained”.

The arbitration board noted that the expert’s evidence was largely based on the experience of other professions such as medical interns, who often got very little sleep during their 24-hour shift.  In contrast, firefighters in St. Catharines had gotten uninterrupted sleep during 80% of their night shifts.  Further, the evidence suggested that it would be rare that a firefighter would not get any sleep during a 24-hour shift.  There was also no evidence of any allegations that the 24-hour shift was a cause or contributing factor in any harm occurring, “even in the litigious U.S.A.”   Further, the Ontario Fire Prevention and Protection Act permitted 24-hour shifts, suggesting that the Legislature has accepted that the 24-hour shift did not present undue health and safety risks.

In summary, the evidence did not establish that there was an unacceptable safety risk to anyone that could not be addressed if a 24-hour shift was implemented.  Given the principles of “replication and comparability”, and given the wide use of the 24-hour shift in other cities, the arbitration board ordered the parties to convene a “joint committee” to “determine the best formulation” for the implementation of a 24-hour shift for a two-year trial period.

The Corporation of the City of St. Catharines v. The Catharines Professional Fire Fighters’ Association, 2014 CanLII 93716 (ON LA)

Arbitration board imposes 24-hour firefighter shift, despite employer’s safety concerns

Dentons’ Spring Employment Seminar Includes OHS Caselaw Highlights – June 5th

Please join us for a complimentary half-day employment law seminar in Toronto on Friday, June 5th. We will cover the following topics:

We are particularly delighted to welcome our special guest speakers The Honourable  K. Kellie Leitch, P.C., M.P., Minister of Labour and Minister of Status of Women, and Chantal Bernier, former Interim Privacy Commissioner of Canada.

Date & Time
Friday, June 5, 2015
Registration and breakfast:  8:30-9:00 a.m.
Welcome remarks and special guest speaker Chantal Bernier:  9:00-9:30 a.m.
Breakout sessions:  9:30-11:45 a.m.
Lunch and special guest speaker Scott Armstrong:  11:45 a.m.
Program ends: 1:00 pm

Dentons Canada LLP
77 King Street West
5th Floor
Toronto, ON

For more information and to RSVP for this event visit our registration page.

Please contact toronto.events@dentons.com for any questions.

Dentons’ Spring Employment Seminar Includes OHS Caselaw Highlights – June 5th

Constructor made mistake of law, not fact: convicted of OHSA charge

A constructor that argued the “mistake of fact” due diligence defence was instead found to have made a “mistake of law” and was convicted of a charge under the Occupational Health and Safety Act. 

A construction employee was injured when a large slab of ice fell from the face wall of a water intake tunnel being constructed.  A few minutes before, workmen suspended by a crane in a basket had been chipping away ice from that area.  The constructor was charged with three offences under the Occupational Health and Safety Act.  The second charge, which the Ministry of Labour inspector admitted alleged “technical” safety violations that played no role in the accident, alleged that the constructor failed to ensure that a load rating chart, prepared by a professional engineer, was affixed in a conspicuous place on the crane.

The crane operator admitted that he was “still waiting” to receive the load rating chart from the professional engineer.  As such, the appeal court found that the constructor guilty on the second charge.

The constructor argued the “mistake of fact” branch of the due diligence defence. It argued that there was a rating chart at the base of a removable plywood platform (that is, at the workers’ feet) that was a suitable “variation” on the legal requirement.  It also purported to rely on a “comfort” letter from an engineering firm. The appeal court held, however, that any mistakes the constructor made were “mistakes of law not fact”: the variations were not permissible because the employer had not given written notice to the joint health and safety committee, and the engineering firm’s letter did not refer to the regulation and could not, in any event, displace the requirements of the regulation.  A mistake of law is not a defence.  As such, the constructor was convicted on the rating chart charge.  Two other charges against the constructor were dismissed.

Ontario (Ministry of Labour) v. Dufferin Construction Company, 2014 ONCJ 652


Constructor made mistake of law, not fact: convicted of OHSA charge

Dismissal of safety-reprisal complaint set aside where employee, mistaken about start time, failed to attend hearing

An employer is facing a resurrected Ontario Labour Relations Board safety-reprisal hearing after the case was dismissed when the employee failed to attend the hearing.

The OLRB dismissed the complaint as abandoned after the employee failed to attend the hearing, which was scheduled to start at 9:30 am.  The OLRB, as is its practice, waited 30 minutes before it dismissed the application. The employer’s representatives were in attendance.

The next day, the employee sent a letter to the OLRB stating that he mistakenly arrived for the hearing at 11:30 am believing that it would start at noon.  He said that he had assumed the noon start time because the previous mediation in the case had started at that time.

The OLRB stated that while it had sympathy for the employer, the employee had demonstrated an effort to participate in the hearing.  He had traveled from Ottawa to Toronto only to find out that he was incorrect about the starting time, and had immediately notified the OLRB about the error and sought to have the complaint re-listed. The OLRB agreed to re-list the complaint for hearing, and overturned the dismissal.

Boville v Alltrade Industrial Contractors Inc, 2014 CanLII 50099 (ON LRB)

Dismissal of safety-reprisal complaint set aside where employee, mistaken about start time, failed to attend hearing

Welcome to Dentons

You will have noticed that the look of this occupational health and safety law blog has changed – a lot!  We are delighted to announce our new global law firm, Dentons.  And much more than our firm colours has changed.

On March 28, FMC combined with international firms Salans and SNR Denton. Each founding firm has built its solid reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes—individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.

We are now working together with 2,500 talented lawyers and professionals -including many occupational health and safety lawyers – in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US.  Please see Introducing Dentons for an overview of our new firm.

These are very exciting times — for our clients, for our work and for the insights we bring to this blog. To find out more about our new firm, about what makes Dentons different, please visit www.dentons.com.

Welcome to Dentons

Results of MOL’s School Safety Enforcement Initiative

The Ontario Ministry of Labour has released results of its enforcement initiative in Ontario schools, which resulted from the tragic death of an Ottawa area student while cutting a steel barrel.

The enforcement initiative appears to have focused on woodworking shops, technological education labs and shops (auto body, construction, and manufacturing courses) and science labs. 

MOL inspectors conducted almost 2,000 visits to more than 900 workplaces including schools and school board offices.  They issued more than 6,600 compliance orders for a total of more than 3 orders per visit. 

The most common compliance orders related to exposed moving parts on machines, slippery work surfaces, unsafe ladders and a lack of guardrails, guarding devices on equipment, lifting devices and personal protective equipment.

The resutls of the MOL’s school safety initiative can be found here.

Results of MOL’s School Safety Enforcement Initiative

$200,000 Criminal Safety Fine for Company, $90,000 OHSA Fine for Director in Deaths of 4 Workers

We recently reported that Metron Construction had pleaded guilty to criminal negligence in respect of the Christmas Eve 2009 deaths of four workers who fell 13 floors when a suspended work platform collapsed.

On Friday, July 13th, the court imposed a historic fine of $200,000 on Metron Construction in relation to that guilty plea.  The prosecutor had requested a fine of $1 million against Metron.

The court also imposed a fine of $90,000 on Joel Swartz, an owner of Metron Construction, for four offences under the Ontario Occupational Health and Safety Act.  The fine against Schwartz is 90% of the maximum fine for individuals.

A Victim Fine Surcharge was added to all fines.

According to the Toronto Star, the judge said that the combined fines totaled more than “three times the net earnings of the business in its last profitable year.”

The Ontario Ministry of Labour, in its press release, notes that:

“A Ministry of Labour investigation found that the deceased workers had not been properly tied off to a lifeline, and had not been properly trained in the use of fall protection. The swing stage had been overloaded and it was later determined to be defective and hazardous.”

The Toronto Star reported that Metron Construction admitted, in an agreed statement of facts put before the court, that the site supervisor, who was one of the four workers who died, had directed the workers to the scaffold knowing that only two lifelines were available; that the site supervisor permitted employees under the influence of drugs to work on the project; that toxicology analysis showed that three of the four workers who died, including the site supervisor, had marijuana in their systems from recent ingestion; and that the scaffold was improperly designed and had defective welding.

The Toronto Star also reported that the fines met with “outrage” from the president of the Ontario Federation of Labour.  Union leaders have been calling for stronger enforcement of criminal safety provisions that came into force in 2004 under what is known as Bill C-45.

The Ministry of Labour notes that other defendants facing charges stemming from this incident are still before the court.

The Ontario Ministry of Labour’s press release can be accessed here.



$200,000 Criminal Safety Fine for Company, $90,000 OHSA Fine for Director in Deaths of 4 Workers

Dismissal for Shovel Threat Void where Employer also Relied on Outdated Discipline

An Ontario labour arbitrator has reinstated a dismissed employee after the employer improperly relied on previous discipline and also failed to prove that the employee had threatened a manager with a shovel.

The employer had violated a previous settlement  by failing to remove previous discipline from the employee’s record and then relying on that discipline in its dismissal of the employee after the shovel incident.  For that reason alone, the termination was “null and void”.

Commenting on the employer’s obligations under the Occupational Health and Safety Act in relation to workplace violence, the arbitrator stated:

“In making this decision, I am cognizant of the company’s obligations under the OHSA. However, even if I had determined the merits of the company’s other reasons for discharge, I would not have found that the company met the onus of demonstrating that the grievor had threatened Mr. A. Bombini with the shovel. There is, therefore, no potential conflict with the company’s obligations under the OHSA in returning the grievor to the workplace.”

Although in this case the arbitrator found that the employee had not threatened with the shovel, this decision demonstrates the importance of following appropriate process and showing care in preparation of the termination letter.  Even a strong dismissal case can be lost where, as here, the employer violated the collective agreement by attempting to rely on outdated or “sunsetted” discipline to bolster its workplace-violence dismissal case.

Labourers’ International Union of North America, Local 506 v Tri-Krete Limited, 2012 CanLII 34143 (ON LA)

Dismissal for Shovel Threat Void where Employer also Relied on Outdated Discipline

MOL Safety Inspectors Should be “Compliance-Focused” not “Enforcement-Focused”: Ontario’s “Regulator’s Code of Practice”

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:

  • “For those who are in full compliance, consider providing compliance assistance.
  • For situations where there is no previous history of non-compliance, consider providing compliance assistance as well as progressive compliance and enforcement action, where appropriate.
  • For situations where there is repeated history of non-compliance, consider using progressive compliance and enforcement actions.
  • For situations where the level of risk is immediate and serious, use your organization’s appropriate enforcement actions.”

Those four categories suggest what is already commonly understood: that employers with a history of non-compliance with the OHSA are more likely to be charged at least in cases of relatively minor safety violations than employers with a history of compliance.

The Code also states that compliance staff should demonstrate honesty and integrity, respect, objectivity, confidentiality, knowledge and competencies.

The Regulator’s Code of Practice may be accessed online at http://www.labour.gov.on.ca/english/about/regulatorscode.php

MOL Safety Inspectors Should be “Compliance-Focused” not “Enforcement-Focused”: Ontario’s “Regulator’s Code of Practice”

Asbestos Exposure did not Cause Colon Cancer: Ontario WSIAT

A mining worker’s exposure to asbestos did not cause his colon cancer, the Ontario Workplace Safety and Insurance Appeals Tribunal has held.

The worker worked for a “nickel producer” for approximately 38 years from 1959 to 1997, first in a mill, then in a smelter, and then in maintenance and construction.  Less than 3 years after he retired, he was diagnosed with colon cancer.

The WSIAT found that although the worker had been exposed to asbestos, the exposure was not of a “continuous and repetitive nature” or a “major component” of his work.

The WSIAT also accepted the evidence of a specialist in occupational medicine that the medical literature overwhelmingly supports the statement that colon cancer is not related to asbestos exposure, and that there was no evidence of a relationship between the worker’s exposure and his colon cancer.

2012 ONWSIAT 4:  http://www.wsiat.on.ca/Decisions/2012/2293%2006.pdf


Asbestos Exposure did not Cause Colon Cancer: Ontario WSIAT