Enforcement and penalties
Enforcement (recommendation 25)
The MOL is currently responsible for enforcing the OHSA and its regulations. This is generally performed by inspectors dedicated to specific sectors such as construction, health care, mining, industrial, and so on. Inspectors visit workplaces in response to complaints or incidents of injury or death or as proactive inspections. While at a workplace, inspectors will generally review the functioning of the JHSC, any outstanding or unresolved issues and perform a walk-through inspection of some or all of the workplace. Proactive inspections are guided by sector strategy plans based upon which sectors and workplaces have greater hazards or injury experience.
The OHSA provides inspectors with a number of enforcement tools to obtain compliance with health and safety requirements. They start with compliance orders, which describe actions the employer is obliged to take to become compliant with specific legal requirements. Where there is immediate risk of injury to a worker, a “stop work” order is issued to prevent work from continuing until compliance is achieved. In addition to orders, inspectors can issue tickets or initiate prosecution for non-compliance (these are described in a subsequent section of this report). The Panel heard from stakeholders that the Ministry has in recent years placed an emphasis on enforcement by inspectors and left compliance assistance to staff of the health and safety associations. This has reportedly been done to provide for role clarity and effective use of resources between the two entities.
Employers, in particular small business, have expressed a concern that this division of responsibility does not serve them well in their efforts to comply with health and safety. In their words, “We are required to make a change by an inspector and then we have to go somewhere else to find out what it is or how to do it.” While employers accept that an inspector cannot or should not become involved in determining complex solutions, employers expressed support for an approach that would point them in the direction of a solution, or "compliance assistance".
Employer stakeholders were also concerned about the inconsistent application of the various enforcement tools available to an inspector, which, for the same contravention, could range from a simple discussion of required changes to the issuance of orders all the way to tickets or prosecution. Employers generally accepted that strong enforcement was appropriate for high-hazard and serious contraventions, particularly where there were repeat occurrences. They did feel, however, that where there was not an egregious contravention and the employer was either unaware of a minor contravention or needed help in understanding how to comply, that a more supportive approach from inspectors was appropriate.
MOL inspectors indicated that such a compliance assistance approach was more prevalent in the past. They did indicate that should there be a return to such practice, they need a clear operational policy framework to guide their work as well as guidance and resource material to support such efforts. They expressed concern that in the absence of such support, they may be subject to regulatory negligence action should an incident occur after an employer follows an inspector’s advice.
Labour stakeholders expressed concerns that inspectors did not sufficiently focus enforcement action on some specific areas of non-compliance. They identified the areas of training and compliance with JHSC and Health and Safety Representative sections of the Act as requiring consistent enforcement.
The Panel believes that such an approach will be supportive of small business in particular, while still creating sufficient deterrence for non-compliance in high-hazard situations. In reviewing this issue, the Panel was presented with information from other jurisdictions, such as British Columbia and Australia, which have sought to find a balance between tough enforcement and compliance assistance. Such an approach still provides Health and Safety Associations with a significant role in supporting compliance in complex or extensive health and safety requirements, while also providing more immediate assistance where this is possible or appropriate.
Penalties (recommendation 26, 27)
In accordance with the Provincial Offences Act, MOL inspectors have the authority to issue a ticket or summons for minor OHSA violations, and may also initiate prosecutions for certain violations. Currently, the maximum fine resulting from a ticket or summons is $1,000, though most violations of this nature are subject to a set fine, which generally do not exceed $300. A successful prosecution, though, may result in more severe penalties; individuals may be subject to a fine of $25,000 or imprisonment, while corporations may be fined up to $500,000.
The Panel heard from some stakeholders that the existing penalties applicable for a ticket or summons do not sufficiently deter non-compliance, particularly as the set fines have not been amended in years to account for inflation. Others have suggested that tickets should be used for a broader range of contraventions including non-compliance with administrative requirements.
British Columbia and Nova Scotia currently use administrative monetary penalties (AMPs) for OHScontraventions. Offences are prescribed by regulation with fixed fine amounts set as penalties. Labour stakeholders and some MOL inspectors have expressed support for AMPs as an intermediate enforcement tool to be applied to offences for which a relatively small fine would not provide sufficient deterrence. Employers view the current system of tickets and prosecution as adequate and are concerned that AMPswill not be consistently applied.
As a potential alternative to financial penalties and/or imprisonment, some stakeholders have proposed “creative sentencing” to link punitive measures to improved health and safety outcomes. This concept is discussed more extensively in the Additional Issues section of this report.
Tickets can be an effective immediate deterrent for non-compliance with OHSA requirements if the associated fines are adequate. A number of administrative requirements of the OHSA, such as having JHSCs or performing workplace inspections, are essential for supporting the IRS. Currently, MOLinspectors issue orders for such contraventions, but without a financial penalty, such orders may not prevent repeat occurrences; tickets, however, would provide stronger deterrence.
The MOL should consult with stakeholders regarding the nature of contraventions for which tickets should be applied.
The Panel generally believes that AMPs, if used, should be applied primarily for wilful or repeat offences that immediately place workers at serious risk. An approach modelled on the AMPs used by the Ministry of the Environment, where decisions are ultimately the responsibility of a director, would provide for consistency of use. The notice to apply an AMP and the appeal process provide an opportunity for employers to challenge an AMP if they believe they are not in contravention.
The MOL should consult stakeholders on which high-risk contraventions should be initially selected for the use of AMPs. The use of these AMPs should be evaluated after a period of time to determine their effectiveness in obtaining compliance.