Inspector’s Request for Documents was not “Unreasonable Search and Seizure”

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

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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