OHSA (Occupational Health and Safety)

Every employer and employee wants to maintain a safe and healthy workplace. Employers, managers, supervisors, and ordinary workers have legal obligations under the Occupational Health and Safety Act (“OHSA”) to do just that.

The OHSA has three basic aims:

  1. It sets out the legal duties of everyone in the workplace with respect to safety;
  2. It establishes requirements to deal with workplac hazards; and
  3. It creates an enforcement regime to ensure compliance with its rules and regulations. Fink & Bornstein – OHSA information – finklegal.ca

 

The obligations imposed on employers and managers are particularly broad and onerous. All employers must abide by these legal obligations and ensure that those they retain or employ similarly comply with the law.

Alan G. McConnell of Fink & Bornstein, Professional Corporation can assist employers and managers navigate the complex world of health and safety law in Ontario. We can help you:

  • Comply with the OHSA and its regulations;
  • Craft effective health and safety policies, including with respect to violence and harassment;
  • Discipline offenders of company safety policies;
  • Appeal Ministry of Labour Orders; and
  • Defend charges under the OHSA.

Failing to comply with the OHSA can result in a quasi-criminal prosecution, carrying the risk of heavy fines and/or imprisonment upon conviction. In rare circumstances, employers, managers and supervisors can even face prosecution under the Criminal Code for workplace accidents.

Workplace Accidents the Inspector’s Visit:

An Employer’s Action List

PRIOR TO AN INSPECTOR’S VISIT

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SEEK legal advice;
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ENSURE compliance with health and safety legislation;
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DEVELOP effective Health and Safety policies;
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EDUCATE management and workers on health and safety issues and company policies;
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MAINTAIN detailed records on the implementation of company policies;
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DISCIPLINE managers and workers who violate company policies;
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REMEDY health and safety hazards or risks promptly;
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PREPARE an Accident Plan for critical injuries or death.

DURING AN INSPECTOR’S VISIT

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ASK for identification;
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ENQUIRE as to whether visit is routine or accident investigation;
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CONSULT lawyer if accident investigation (see further below);
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COOPERATE with inspector, but do not incriminate;
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ACCOMPANY inspector to ensure there is no unescorted tour;
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RECORD notes of inspector’s visit, including questions asked and answers given, samples, copies of documents removed etc.
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AVOID guessing, giving opinions, commenting on motive or intention, or answering about events you have no direct knowledge of;
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ENSURE best person is available to answer inspector’s questions;
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PROVIDE positive information about company, its policies and safety record.

POST-ACCIDENT SITUATIONS

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IMPLEMENT Accident Plan if death or critical injury;
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REPORT to authorities as legally required under the WSIA and OHSA;
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PRESERVE accident scene;
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CONSULT a lawyer if accident involves death or critical injury
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INITIATE a detailed company investigation of accident;
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ENSURE steps taken to maintain “privilege” of company investigation;
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COOPERATE with MOL investigators (see comments above about how to answer questions);
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ACCOMPANY investigators and take detailed notes and record of interviews, documents reviewed, and samples;
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SEEK legal advice prior to employees giving statements;
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ARRANGE presence of legal counsel for supervisors and senior management if they decide to give statements;
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DECLINE media interviews;
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CONSIDER obtaining privileged third party investigation report through legal counsel; and
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REMEDY any problems potentially related to accident.

MOL – Ministry of Labour Accident Investigations:

Protecting an Employer’s Rights

Safety conscious employers take appropriate steps to prevent accidents. But what happens if despite all of your efforts, there is a critical or fatal accident in your workplace? It is important that you investigate the accident and review your health and safety policies and procedures. You will also want to co-operate with the Ministry of Labour (“MOL”) investigation into the accident – in fact the OHSA obliges you to cooperate with the MOL Inspector. Obstructing an Inspector or failing to cooperate can result in prosecutions under the OHSA! However, it must be remembered that information collected by an MOL Inspector can form the basis for a future prosecution. Therefore, while complying with your duty to cooperate and not obstruct, employers must also diligently protect and safeguard their legal rights under the law if they become the subject of a MOL investigation. Employers have rights and defenses available to them at law – use them!

Key Considerations for Employers
During an MOL Accident Investigation

The Accident

Upon learning that there has been a critical or fatal workplace injury, consult legal counsel familiar with workplace safety law. Immediately commence an investigation of the accident parallel to that of the MOL under the guidance and direction of legal counsel. The investigation must include, at a minimum, the taking of signed and dated witness statements and photographs of the accident scene.

All documents related to the company accident investigation must be marked privileged and confidential for legal counsel and kept in a separate file marked “Privileged and Confidential”.

Prior to submitting accident notices to the MOL or WSIB, review their wording with legal counsel to ensure that they provide only the minimum information required by law.

MOL Inspector - Arrives on the Scene

The employer must select a manager to be the sole contact person with the MOL Inspector. The person selected should be aware of the employer’s legal duties under the OHSA. He or she must be mindful that anything said to the Inspector can be used against the company in any prosecution. It is this person's responsibility to track the inspector throughout the investigation recording what he or she says and does during the visit. The contact person should record all documents and other items taken by the inspector and object if the inspector requests privileged documents.

MOL Interviews

The Inspector will normally want to interview employees and managers about the accident. All workplace parties are required to cooperate in any interviews. If possible, arrange for witnesses to meet with legal counsel before the interviews to review the matter. Ask the MOL inspector to allow legal counsel or another employer representative to sit in on any interviews. Prior to any interview managers and supervisors should state that they are participating because they are compelled to do so by the OHSA and are not providing information voluntarily. At the start of the interview, supervisors or managers should also ask the inspector:

  • "Is there any chance that I will be prosecuted under the OHSA relating to the accident?"
  • "Can you confirm that I won’t be prosecuted or guarantee that I will not be prosecuted?"

The employer should advise all management personnel to answer questions honestly. However, it is also important to tell interviewees that they can ask for clarifications of the questions and can answer “I don’t know” if that is the case - they must not guess at answers.

Search Warrants

If the MOL inspector arrives at the workplace with a search warrant, consult legal counsel and ensure that the inspector does not expand the search outside of the bounds set by the search warrant.

MOL Orders

If the Inspector issues Orders against the company relating to the accident, review them with legal counsel and consider an appeal. Keep in mind that information provided to the Inspector weeks or months after the accident relating to the Orders and the company’s compliance with them can be used in a prosecution.

Alan G. McConnell of Fink & Bornstein, Professional Corporation can assist employers and managers navigate the complex world of health and safety law in Ontario

If you or your loved one has experienced a work related injury and want a Law Society of Ontario Certified Lawyer Specialist to evaluate the WSIB benefits that you may be entitled to:
Please Call 416-537-0108 to learn about our FREE Case Evaluation.