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Last year, the Ontario Ministry of Labour ("MOL") committed to hiring approximately 200 new health and safety inspectors. This initiative was taken to address the fact that since 1996 the number of inspectors had decreased in the Province of Ontario, while the number of workplace fatalities had increased.

The current government at Queens Park is committed to taking steps to help prevent the 60,000 or so workplace injuries which occur every year in this province.

The goal, as recently stated by Labour Minister Chris Bentley, is to reduce workplace injuries by 20% in four years. Currently, the first 100 of the 200 inspectors to be hired by the MOL are receiving classroom instruction. They will soon be ready to start visiting Ontario workplaces. The remaining 100 inspectors will be hired over the balance of this year.

Overall, the MOL will be targeting the 6,000 workplaces in Ontario with the highest loss time injury rates. Accordingly, employers in the province, particularly those with high loss time injury rates, can expect to see more visits from their local MOL office. Indeed, the fines for contravention of the Occupational Health and Safety Act ("Act") can be very significant.

The Act sets out a comprehensive regime dealing with health and safety, and assigning legal responsibility to various workplace parties: Individuals who breach the Act, its regulations, or an Order issued by an MOL Inspector, may be liable for a fine of up to $25,000.00 or to imprisonment for a term of up to 12 months, or both.

Hefty fines

Corporations convicted of offences under the Act face maximum fines of up to $500,000. These are significant fines, which are designed to provide real incentive to both employer's and other MOL parties under the Act, including constructors, super- visors, workers and corporate directors and officers, to take health and safety very seriously. In addition to liability under the Act, we are already seeing the first charges being laid under Bill C45 which contained amendments to the Criminal Code of Canada, and which came into effect on March 31, 2004.

These amendments establish new duties on supervisors and others who direct how work is done, or who have the authority to direct work within any given workplace. A violation of these provisions could result in a charge of criminal negligence under the Criminal Code.

A review of the MOL website confirms the seriousness with which the MOL will pursue prosecutions under the Act. The fines can be very significant. For example, in the spring of 2003, an Ontario based residential construction company was fined $400,000.00 for two violations of the Act. This fine arose as a result of the death of a worker following an electrical shock. The worker in question was moving a 24-foot aluminum extension ladder from one townhouse to another when the ladder hit a 13,000 volt overhead power line.

As a result of this, the company was charged with failing to ensure that the ladder was not brought within three meters of an energized overhead electrical conductor, as required by the Construction Regulations under the Act. In addition, the company was charged with failing to ensure that the worker was not endangered from electrical shock from overhead electrical conductors, and that the wires were covered or otherwise made safe for the workers.

All of this points to the need for extreme diligence on the part of the responsible parties under the Act. Ultimately, responsible parties under the Act have the legal defence of due diligence.

This means that they must establish that they have taken all reasonable steps to maintain the health and safety of workers, and achieve compliance with the provisions of the Act and its many regulations. The Act also places responsibilities on workers: they must work in compliance with the Act and its regulations, and must comply with a series of other obligations.

Accordingly, employers must have knowledge of workplace hazards, must have proper systems in place for avoiding those hazards, must follow up on those systems to ensure that all proper policies, procedures and legal requirements are understood and followed by the affected parties, and must maintain ongoing communication to ensure compliance.

Ultimately, employers must implement health and safety programs and procedures that include the training of workers, as well as the monitoring, enforcement and discipline of workers who violate the Act.

All of this may have to be made available to the MOL when your local inspector comes calling.

Occupational health and safety is a very serious issue in the province of Ontario.

The province is committed to reversing the increase in the number of workplace fatalities in Ontario (increase of 26 per cent since 1997). For this reason, those employers who choose to ignore their responsibilities will most likely have to face the consequences and the costs.

Ruben R. Goulart is a partner with the law firm Keyser Mason Ball LLP He manages the firm’s Labour and Employment practice, which includes representing employers in Occupational Health and Safety matters. He can be reached at 905-276-0404 and his email address is goulart@kmblaw.com.

The comments in this newsletter are of a general nature and are not designed to replace professional advice in specific situations. If you would like extra copies of this newsletter, or you know of anyone who would be interested in joining our mailing list, please contact Cheryl Woolcott at (905) 276-9111.