Introduction

Employers across Canada are subject to legislation governing occupational health and safety in the workplace. Each Canadian province is subject to its own provincially enacted health and safety legislation and employees in the federal jurisdiction are subject to federally enacted health and safety legislation.

The Ontario Occupational Health and Safety Act (the "Act") is typical of the health and safety legislation that is in force across Canada. Without exception, employers should contact counsel experienced in matters of health and safety in the jurisdiction applicable to their workplace.

The Act establishes the duties and responsibilities of the workplace parties with respect to health and safety in the workplace, and sets out penalties in the event of a breach of the Act. Employers, supervisors, and workers all have statutorily defined duties and responsibilities.

Duties of Various Parties

As stated, the Act defines the duties and responsibilities of employers, supervisors and workers in the workplace. Other entities with responsibilities under the Act include owners, constructors, licensees, suppliers, and architects and engineers.

It is most commonly the duties that are associated with employers, supervisors, workers, owners and constructors which arise in matters under the Act. These duties are summarized as follows:

Owners:

An owner is defined as an owner of land or premises that is used as a workplace. An owner may include a trustee, receiver, tenant, or occupier of land.

Owners have broad overarching responsibilities over the workplace. Where the workplace in question is not a construction site, these responsibilities include:

• ensuring that facilities as prescribed by the Act are provided
• ensuring that prescribed facilities are maintained as prescribed
• ensuring that the workplace complies with the regulations enacted pursuant to the Act
• ensuring that the workplace is constructed, developed, reconstructed, altered, or added to only in compliance with the Act and its regulations

Constructors:

Constructors are defined as persons who undertake a construction project for an owner and include owners who undertake all or part of a construction project by themselves or by more than one employer. A “constructor” is generally the person who has overall control of a construction project.

Constructors have broad overarching responsibilities over the construction project, including:

• ensuring that the measures and procedures prescribed by the Act and the regulations are carried out on the project
• ensuring that every worker performing work on the project complies with the Act and the regulations
• ensuring the health and safety of workers is protected

Employers:

Employers are defined extremely broadly under the Act. In fact, more than one employer can be found to exist in a workplace despite how the parties would otherwise choose to label themselves. The definition of an "employer" is as follows:

A person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.

Employers have far-reaching legislated responsibilities for health and safety in the workplace. It is very important to note that an employer can not contract away their obligations under the Act; therefore, a contract that stipulates that only one workplace party will be responsible for health and safety will be of no force or effect if the Ministry of Labour investigates a workplace.

Among the duties imposed upon employers under the Act are:

• ensuring the equipment, materials and protective devices as prescribed are provided, maintained in good condition, and used as prescribed
• ensuring the measures and procedures prescribed by the Act are carried out in the workplace
• ensuring that all reasonable precautions in the circumstances are taken for the protection of a worker
• posting a copy of the Act in the workplace, as well as any explanatory materials published by the Ministry of Labour. The Act and the materials must be posted in English and the majority language of the workplace, if other than English
• to prepare and review, at least annually, a written occupational health and safety policy and to develop and maintain a program to implement that policy
• to appoint a competent person as supervisor
• to provide information, instruction and supervision to a worker to protect the health or safety of the worker

Supervisors:

In addition to having to be competent workers, supervisors also have defined responsibilities under the Act. They are as follows:

• to ensure that a worker works in the manner and with the protective devices, measures and procedures required by the Act and the regulations
• to ensure that a worker uses or wears the equipment, protective devices or clothing that the employer requires to be worn or used
• to advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware
• to provide a worker with written instructions as to the measures and procedures to be taken for the protection of a worker, where prescribed by the Act
• to take every reasonable precaution in the circumstances for the protection of a worker

Workers:

A worker is a term that is broadly defined to include any person who performs work or supplies services for monetary compensation. A worker, therefore, is not the same as an "employee". In fact, a worker is purposefully defined so as to capture individuals who may not have a traditional employer-employee relationship with one company.

The responsibilities of workers, under the Act, include:

• to work in compliance with the Act and its regulations
• to use or wear the equipment, protective devices or clothing that the worker's employer requires to be used or worn
• to report to his or her employer or supervisor the absence of, or defect in, any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker
• to report to his or her employer or supervisor any contravention of the Act or the regulations or the existence of any hazard of which the worker knows

Prosecution and Defences

If a workplace party is found to have violated the Act, the Ministry of Labour will lay charges against that party. The charges are not criminal charges but are considered to be akin to criminal charges. Often referred to as quasi-criminal, charges laid under the Act carry severe monetary penalties and can result in jail time for a convicted offender.

Offences under the Act are called "strict liability offences". As a strict liability offence, a party does not have to intend to violate the Act in order to be convicted of an offence. The fact that the offence has occurred, and the accused has no defence, is sufficient to obtain a conviction.

As a strict liability offence, once a violation has been proven, there are only two defences to a charge under the Act; a “due diligence” defence or the defence of “officially induced error”.

Due Diligence

An accused can establish due diligence if it can be established that it took "every reasonable precaution" to avoid the circumstances giving rise to the charge. This is the most often used defence in prosecutions under the Act.

An accused can also establish due diligence if it proves that it was under a mistaken apprehension about a set of facts, that if true, would absolve the accused of liability. Ignorance of the law, or a mistaken understanding of the law, does not qualify as a defence in these circumstances. As a result, this branch of the due diligence defence is less often relied on.

Officially Induced Error

An accused may have a defence to a charge under the Act if it can establish that it was operating as a result of advice or an opinion provided by a government official. The reliance on the advice or opinion provided must be reasonable; an accused can not have turned a blind eye to the true state of events and then attempt to rely on this defence.

This defence is used infrequently.

Establishing Due Diligence

There are no legislated guidelines that set out what constitutes due diligence; the criteria required to prove that an accused has taken "all reasonable precautions" varies in each case and depends on a number of factors. However, as a general guide, workplace parties should at least have the following preventative measures in place at a worksite.

• All workplace parties should be familiar with the Act and its regulations
• Supervisors must be competent, aware of all workplace hazards, and able to communicate those hazards to workers
• Safety equipment that is prescribed must be used in the workplace
• Workers must be trained with respect to the safety equipment they are required to use
• Safety policies and procedures must be written, and reviewed at least once annually
• Regular health and safety meetings should be held
• Employers should be receptive to recommendations for improving health and safety and workers must feel that they can make recommendations
• Health and safety committees should be established and should consist of both worker and employer representatives
• Employers should document all steps taken to improve health and safety in the workplace and to correct conditions that are identified as unsafe.

Competent persons

The Act requires the employer appoint a "competent person" to supervise the workplace. A competent person is defined by the Act as a person who is:

• qualified because of knowledge, training and experience to organize the work and its performance
• is familiar with the Act and the regulations that apply to the work, and
• has knowledge of any potential or actual danger to health or safety in the workplace.

An employer can be charged under the Act for having failed to have appointed a competent person. As a result, employers should ensure that supervisors have training in the general and specific aspects of their employment, including the hazards that may exist during the performance of that employment and all protective equipment that may be required to work safely.

Health and Safety Committees

Health and safety committees may take a number of forms, depending upon the size of the workplace. All workplaces, except those who regularly employ less than five workers, are required to have a designated health and safety representative or committee in one of the forms specified in the Act.

Health and Safety Representative

Where there are regularly more than five workers at the workplace, at least one non-managerial worker must be selected by the workers as the health and safety representative. The health and safety representative must conduct monthly inspections of the workplace, and is entitled to receive information and assistance from the employer in order to carry out his or her duties.

The health and safety representative has the power to identify situations that may be a source of danger or hazard to workers and to make recommendations or report his or her findings to the employer, the workers and the trade union. An employer must respond to written recommendations from the health and safety representative within twenty-one days. If the employer disagrees with the recommendations, it must provide reasons for that disagreement. If the employer agrees with the recommendations, it must provide a timetable for implementing the changes.

Health and Safety representatives are entitled to notice of a critical injury or death in the workplace, and may inspect the place where the accident occurred.

Health and Safety Representatives are entitled to paid time from work to carry out their duties.

Joint Health and Safety Committees

Joint Health and Safety Committees are required in any workplace at which twenty or more workers are regularly employed. However no Joint Health and Safety Committee is required where a construction project employing twenty or more workers is expected to last less than three months.

A Joint Health and Safety Committee ("Committee") may also be required where an inspector makes an order with respect to a workplace using toxic substances, or where a regulation applies with respect to specific designated substances.

Where the workplace consists of fewer than fifty workers, the Committee must have at least two members; where the workplace consists of fifty or more workers, the Committee must have at least four members. At least half of the members of the Committee must be non-managerial workers, the remaining members must be managerial workers. The non-managerial members (or “worker members”) are selected by the workers, or if represented by a union, by the union; the employer cannot select the worker members of the Committee.

In workplaces with fifty or more employees, one worker member and one employer member must receive health and safety certification, as provided by the Workplace Safety and Insurance Board.

The Committee has very broad powers, which mirror the powers of the Joint Health and Safety Representative, and which also include:

• identifying situations that may be a source of danger or hazard to workers
• making recommendations to the employer and the workers for the improvement of health and safety in the workplace
• making recommendations to the employer and the workers for the establishment, maintenance and monitoring of programs and measures and procedures for the health and safety of workers
• obtaining information from the employer respecting actual or potential workplace hazards for materials, processes or equipment

The Right to Refuse Unsafe Work

The Act sets out extensive provisions giving employees the right to refuse unsafe work where he or she has reason to believe that the equipment or physical condition of the workplace is likely to endanger him or herself or another worker or where he or she has reason to believe that workplace violence is likely to endanger him or herself. The belief held by the employee must be reasonable, however. The right to refuse unsafe work will not apply if the danger is inherent in the work or the refusal to perform the work would endanger another individual's life.

The worker must promptly report the refusal to a supervisor who is to investigate the conditions leading to the refusal in the presence of a health and safety representative. If the employee continues to refuse to perform the work after the investigation, the employer must contact a health and safety Inspector, appointed under the Act and employed by the Ministry of Labour. The Inspector will investigate the circumstances leading to the refusal and make a determination as to whether or not the work is safe to perform.

The Act also sets out a clear prohibition against retaliation or reprisals against employees who exercise their right to refuse to perform unsafe work. An employer who penalizes an employee for exercising his or her rights under the Act may be subject to prosecution under the Act.

Notices

Various types of workplace health and safety incidents require notice to be provided to a Ministry of Labour Inspector.

Where a person is killed or critically injured, the employer must immediately notify the Inspector, the Committee or Health and Safety Representative, and the trade union (if any). Within forty eight hours, the employer must send the Inspector a written report of the circumstances of the occurrence.

In addition, where a person is killed or critically injured, the accident scene must be preserved. The only circumstances under which an accident scene may be disturbed are to:

• save life or relieve human suffering
• maintain an essential public utility service or a public transportation system
• prevent unnecessary damage to equipment or other property

If an accident occurs, but no critical injury or death occurs, the employer must notify an Inspector, the Committee or the Health and Safety Representative, and the trade union (if any) within four days. The notice given must be in writing.

Similarly, if the employer becomes aware that an employee has an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board, the employer must notify an Inspector, the Committee or the Health and Safety Representative, and the trade union (if any) within four days. The notice given must be in writing.

Workplace Violence and Harassment

The Ontario Occupational Health and Safety Act was recently amended in 2010 to add protections against violence and harassment in the workplace.

“Workplace violence” is defined in the Act to mean:

• The exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker 
• An attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker 
• A statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. 

“Workplace harassment”, meanwhile, is defined to mean:

• Engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. 

Workplace harassment may include bullying, intimidating or offensive jokes or innuendos, displaying or circulating offensive pictures or materials, or offensive or intimidating phone calls.

Unlike the Ontario Human Rights Code’s protection against harassment which only protects against harassment on the basis of the prohibited grounds under the Code (i.e. race, creed, sexual orientation, disability, etc.) as well as sexual harassment, the Occupational Health and Safety Act’s definition of harassment goes much broader than this to cover all types of harassment, regardless of the basis for it or nature of it.

Policies and programs

Under the amendments to the Act, employers must now:

• prepare policies with respect to workplace violence and workplace harassment; 
• develop and maintain programs to implement their policies; and 
• provide information and instruction to workers on the contents of these policies and programs. 

Workplace violence programs must include measures and procedures for:

• summoning immediate assistance when workplace violence occurs or is likely to occur; and 
• controlling risks identified in the assessment of risks. 

Both workplace violence and workplace harassment programs must include measures and procedures for workers to report incidents of workplace violence/harassment and set out how the employer will investigate and deal with incidents or complaints.

Assessment

Employers must proactively assess the risks of workplace violence that may arise from the nature of the workplace, the type of work or the conditions of work. Measures and procedures to control these risks must be included in the workplace violence program.
 
Domestic violence

Employers who are aware, or ought reasonably to be aware, that domestic violence may occur in the workplace must take every precaution reasonable in the circumstances to protect a worker at risk of physical injury.

Persons with a History of Violence

Employers and supervisors must inform a worker about the risk of workplace violence from a person with a history of violent behaviour, if the worker can expect to encounter that person in the course of their work, and if the worker may be at risk of physical injury. Personal information may be disclosed, but should be limited to what is reasonably necessary to protect the worker from physical injury.

Work refusal

Workers have the right to refuse work if they have a reason to believe they are in danger from workplace violence. Reprisals by the employer continue to be prohibited. Certain workers continue to have only a limited right to refuse.