Part VIII: Enforcement
Where workplace parties do not voluntarily comply with the Occupational Health and Safety Act (OHSA) and regulations, the Ministry may exercise its administrative and/or regulatory enforcement powers. Enforcement may include the issuance of requirements or administrative orders against the non-compliant workplace party and where appropriate may result in a regulatory prosecution under the Provincial Offences Act (POA).
Ministry of Labour, Immigration, Training and Skills Development health and safety inspectors are typically appointed as Provincial Offences Officers under the POA. Their powers include the following:
- proactive and reactive inspections of provincially regulated workplaces
- issuance of requirements or administrative orders where there is a contravention of the OHSA or its regulations
- investigation of critical injuries, fatalities, work refusals and health and safety complaints, and,
- initiate prosecution under the POA in respect of offences under the OHSA and/or its regulations.
A prosecution may be initiated when the inspector has reasonable and probable grounds to believe that a workplace party has committed an offence. This means that prosecutions may be commenced against any workplace party who commits an offence.
Workplace inspections are carried out by Ministry of Labour, Immigration, Training and Skills Development health and safety inspectors to ensure compliance with the Occupational Health and Safety Act and regulations and to ensure that the internal responsibility system is working. During inspections, inspectors may provide workplace parties with compliance assistance, such as referring them to the relevant health and safety association for information about specific areas of occupational health and safety.
How often are inspections conducted?
It depends on a variety of factors, such as the type of workplace, its size and its past health and safety record. Inspections may also be conducted in response to a specific complaint about a workplace. In the case of a complaint, the Ministry does not disclose any information about the identity of the complainant.
The inspection involves a thorough examination of the physical condition of the workplace by the inspector, who is usually accompanied by both employer and worker health and safety representatives or members of the joint health and safety committee.
What are some of the powers of an inspector?
The inspector has various powers, including the authority to:
- enter any workplace without a warrant or notice [clause 54(1)(a)]
- question any person, either privately or in the presence of someone else, who may be connected to an inspection, examination or test [clause 54(1)(h)]
- handle, use or test any equipment, machinery, material or agent in the workplace and take away any samples [clauses 54(1)(b) and (e)]
- look at any documents or records and take them from the workplace in order to make copies [clauses 54(1)(c) and (d)]. The inspector must provide a receipt for the removed documents and return them promptly after making copies
- take photographs [clause 54(1)(g)]
- require that any part of a workplace, or the entire workplace, not be disturbed for a reasonable period of time in order to conduct an examination, inspection or test [clause 54(1)(i)]
- require that any equipment, machinery or process be operated or set in motion or that a system or procedure be carried out that may be relevant to an examination, inquiry or test [clause 54(1)(j)]
- look at and copy any material concerning a worker training program [clause 54(1)(p)] or be able to attend the training programs
- direct a joint health and safety committee member representing workers, or a health and safety representative, to inspect the workplace at specified intervals [section 55]
- require the employer, at his or her expense, to have an expert test and provide a report on any equipment, machinery, materials, agents, etc. [clause 54(1)(f)]
- require the employer, at his or her expense, to have a professional engineer test any equipment or machinery and verify that it is not likely to endanger a worker [clause 54(1)(k)], and stop the use of anything, pending such testing [clause 54(1)(l)], and
- require an owner, constructor or employer to provide, at his or her expense, a report from a professional engineer that assesses the structural soundness of a workplace [clause 54(1)(m)].
It is important to note that an inspector may only enter a private dwelling or part of a dwelling that is actually being used as a workplace with the consent of the occupier or under the authority of a warrant issued by a court under the OHSA or the Provincial Offences Act.
Who can accompany the inspector?
In addition to persons selected by the employer, the employer has a duty to afford a worker representative the opportunity to accompany the inspector during an inspection. This person may be a worker member of the joint health and safety committee, a health and safety representative, or another knowledgeable and experienced worker (selected by the union, if there is one) [subsection 54(3)]. This worker is considered to be at work during the inspection and must be paid at the applicable rate of pay.
If there is no such worker representative, during the inspection the inspector must endeavour to talk to a reasonable number of workers about their health and safety concerns during the inspection [subsection 54(4)].
The inspector may also be accompanied by a person with special, expert or professional knowledge. For example, an inspector may bring an engineer into a workplace to test machinery for purposes of operator safety [clause 54(1)(g)].
Everyone in the workplace is expected to co-operate
The Act prohibits any person from obstructing, hindering, molesting or interfering with an inspector or attempting to do so while the inspector is exercising powers or performing duties under the Act,[subsection 62(1)]. Moreover, the Act requires every person to assist an inspector in the exercise of his or her powers and duties and in the execution of a search warrant.
It is an offence to interfere in any way with an inspector. This includes giving false information, failing to give required information or interfering with any monitoring equipment left in the workplace.
The inspector will issue written orders to the employer to comply with the law within a certain time period or, if the hazard is imminent, to comply immediately or stop work. An inspector's order can require the employer to submit a plan to the ministry, specifying when and how he or she will comply with the order. An inspector may also make written observations for improved health and safety practices.
Stop work orders
Where an order has been issued to correct a contravention of the Act or regulations, and the contravention in question is dangerous to the health or safety of a worker, the inspector may also order that:
- any place, equipment, machinery, material, process, etc., not be used until the order has been complied with [clause 57(6)(a)]
- the work be stopped [clause 57(6)(b)] until the stop work order is cancelled or withdrawn by the inspector
- the workplace be cleared of workers and access to the workplace be prevented until the hazard is removed [clause 57(6)(c)]. No worker can be required or permitted to enter the workplace except to remove the hazard, and then only if the worker is protected from the hazard [section 58], and
- any hazardous material not be used [subsection 57(8)].
Where the inspector has stopped work, the employer may resume work, or the use of any equipment, machinery, etc., before a further inspection under the following two conditions:
- the employer has notified an inspector that the order has been complied with, and
- a joint health and safety committee member representing workers or a health and safety representative advises an inspector that, in his or her opinion, the order has been complied with [subsection 57(7)].
Employer's notice of compliance with an order
If an inspector has issued an order to an employer to remedy a contravention of the Act or regulations, the employer must send written notification to the Ministry within three days of when the employer believes the order has been complied with [subsection 59(1)].
This notice must be signed by the employer. It must also be accompanied by a signed statement from a worker member of the joint health and safety committee or a health and safety representative, indicating that he or she agrees or disagrees with the employer's notice of compliance with the order or a statement indicating that the member or representative has declined to sign the statement [clauses 59(2)(a) and (b)].
The joint health and safety committee member or representative can decline to sign such a statement. One reason might be that the member or representative may feel that he or she cannot properly evaluate the employer's compliance with the order. In such a case, the employer must submit, along with the compliance notification, a statement that the member or representative declined to sign the statement of agreement or disagreement [clause 59(2)(b)].
The employer must post copies of both the notice of compliance and the original order in a place where they are most likely to be seen by workers. The notice must be posted for 14 days following its submission to the Ministry [subsection 59(3)].
The employer's notice of compliance to the Ministry of Labour, Immigration, Training and Skills Development does not mean that compliance with an order has been achieved. Compliance with an order can be determined only by a Ministry inspector [subsection 59(4)].
Posting orders and reports in the workplace
When an inspector issues an order or a report of the inspection, a copy of the order or report must be posted in the workplace, where it is most likely to be seen by the workers. A copy must also be given to either the joint health and safety committee or the health and safety representative [subsection 57(10)]. Where the order resulted from a complaint regarding a contravention and the complainant requests a copy, the inspector must ensure that a copy is provided to that person.
Can an inspector's orders be appealed?
Yes, any employer, constructor, licensee, owner, worker or union who is aggrieved by an inspector's order can appeal to the Ontario Labour Relations Board (OLRB) within 30 days of the order being issued [subsection 61(1)]. The party appealing can also ask the OLRB to suspend the order until the appeal has been decided. If an inspector decides not to issue an order, that decision can also be appealed [subsection 61(5)].
The OLRB will hear and make a decision on the appeal as promptly as possible under the circumstances.
In making a decision, the OLRB has all the powers of an inspector and can uphold the order of the inspector, rescind it or issue a new order. The decision of the OLRB is final.
Scene of a critical or fatal injury
If a person is critically injured or killed at a workplace, no person can alter the scene where the injury occurred in any way without the permission of an inspector.
This does not apply if it is necessary to disturb the scene in order to:
- save a life or relieve human suffering
- maintain an essential public utility service or public transportation system, or
- prevent unnecessary damage to equipment or other property [subsection 51(2)].