Occupational Health and Safety Defence

What are an employer’s duties under OHSA?

Ontario employers have extensive duties under OHSA. Section 25 requires employers to take prescribed measures and procedures, provide prescribed equipment and protective devices, and ensure prescribed measures and procedures are carried out in the workplace. Employers must also provide workers with information, instruction, and supervision necessary to protect their health and safety.

Depending on the workplace and applicable regulations, employer responsibilities may include:

• Providing a safe workplace and safe work practices
• Providing appropriate information, instruction, and supervision
• Ensuring workers are aware of workplace hazards
• Maintaining equipment and protective devices
• Implementing required safety procedures
• Appointing competent supervisors
• Maintaining required records
• Complying with applicable OHSA regulations
• Responding appropriately to workplace hazards and incidents
• Cooperating with health and safety representatives and committees where required
• Taking reasonable steps to prevent workplace injuries and illnesses

OHSA duties can also apply to corporate directors and officers. Employers should therefore treat significant health and safety concerns as legal matters, particularly where there has been a serious incident, regulatory investigation, or allegation of systemic non-compliance.

What Is Due Diligence Under OHSA?

Due diligence is an important concept in an OHSA defence.

In applicable OHSA prosecutions, the legislation provides a defence where the accused establishes that every precaution reasonable in the circumstances was taken for certain specified duties.

In practical terms, an employer’s due diligence may involve demonstrating that they took reasonable steps to identify hazards, establish appropriate safety procedures, communicate those procedures, train and supervise workers, monitor compliance, and respond when problems were identified.

A strong due diligence program may include:

• Written health and safety policies
• Workplace hazard assessments
• Worker training records
• Orientation records
• Safety meetings
• Equipment inspection records
• Maintenance records
• Supervisor documentation
• Workplace inspections
• Incident reports
• Corrective-action records
• Disciplinary records where appropriate
• Emergency-response procedures
• Regular review and updating of safety practices

Documentation matters. A policy that exists only on paper may provide limited assistance if there is no evidence that the employer actually implemented and enforced it.

An OHSA defence lawyer can review an employer’s health and safety system and identify evidence that may support a due diligence defence.

OHSA Inspections in Ontario

The Ministry of Labour, Immigration, Training, and Skills Development may conduct workplace inspections for a variety of reasons, including proactive enforcement initiatives, complaints, referrals, and workplace incidents.

During an inspection, an inspector may examine the workplace, speak with workplace parties, review documents, and identify potential contraventions.

Employers should take an inspection seriously from the outset.

What Happens During an OHSA Inspection?

An OHSA inspection may involve:

1. An inspector attending the workplace.
2. Examination of workplace conditions and equipment.
3. Discussions with management, supervisors, and workers.
4. Review of health and safety documentation.
5. Identification of alleged hazards or contraventions.
6. Orders or other enforcement measures where appropriate.
7. A written field visit report.

Ontario’s Ministry of Labour states that inspectors may issue orders when they identify violations. Where there is an immediate risk of worker injury, an inspector may issue a stop-work order until the hazard is addressed.

Employers should avoid treating an inspection as an informal conversation. Statements made during an inspection, documents provided to an inspector, and the employer’s response to identified concerns may become important later.

OHSA Orders and Stop-Work Orders

An OHSA order requires a workplace party to address an identified legal or safety issue.

Orders can have immediate operational consequences. A stop-work order, for example, can prevent work from continuing until the identified hazard is addressed.

Employers should promptly determine:

• What provision of OHSA or its regulations is alleged to have been breached?
• What exactly does the order require?
• What deadline applies?
• What evidence supports compliance?
• Does the employer disagree with the inspector’s findings?
• Should the order be appealed?
• Could compliance with the order create other legal or operational issues?

Under OHSA, an affected employer may appeal an inspector’s decision to the Ontario Labour Relations Board (OLRB). The Ministry states that an appeal generally must be filed within 30 days of the order’s issue date. The OLRB can suspend, uphold, rescind, or vary an order in an appropriate case.

Because appeal deadlines can be short, employers should obtain legal advice promptly after receiving a significant order.

Ministry of Labour Investigation After a Workplace Incident

A serious workplace incident can trigger a Ministry of Labour investigation.

Examples may include:

• Serious worker injuries
• Fatal workplace incidents
• Equipment-related incidents
• Falls
• Fires or explosions
• Exposure to hazardous substances
• Structural failures
• Workplace violence incidents
• Other circumstances requiring regulatory notification or investigation

The investigation may examine not only what happened but also why.

An inspector may consider:

• The condition of the workplace
• Applicable OHSA requirements
• Workplace policies
• Training
• Supervision
• Equipment maintenance
• Previous incidents
• Prior complaints
• Hazard assessments
• Employer knowledge
• Corrective measures
• Actions taken before and after the incident

A workplace incident can therefore lead to consequences extending well beyond the immediate event.

How Should Employers Respond to an OHSA Investigation?

Employers should avoid making assumptions about the outcome of an investigation.

Instead, employers should consider the following:

Preserve Evidence

Relevant documents, photographs, video footage, training records, inspection records, maintenance records, policies, and communications should be preserved.

Identify the Relevant Facts

Establish a clear chronology of what happened, who was involved, and what steps were taken before and after the incident.

Cooperate Appropriately

Employers should comply with their legal obligations while ensuring that responses to investigators are accurate and appropriately managed.

Obtain Legal Advice

Early advice can help employers understand their rights and obligations before significant evidence is collected, statements are given, or enforcement decisions are made.

OHSA Charges and Offences

An employer may face OHSA charges where the Ministry alleges that the employer or another workplace party contravened OHSA, its regulations, or certain orders or requirements.

OHSA Section 66 provides that contravening the Act or regulations, or failing to comply with an applicable order or requirement, can constitute an offence.

Depending on the circumstances, allegations may concern:

• Failure to provide required protection
• Failure to provide adequate instruction or supervision
• Failure to comply with prescribed safety requirements
• Failure to protect workers from known hazards
• Failure to comply with an inspector’s order
• Regulatory violations
• Other alleged OHSA contraventions

An OHSA charge is a serious legal matter. Employers should not assume that paying a fine or simply accepting an allegation is the best approach.

An OHSA defence lawyer in Ontario can assess the allegations, available evidence, applicable legislation, and potential defences.

OHSA Penalties for Employers

OHSA convictions can result in significant penalties.

Under the current legislation, an individual convicted of an OHSA offence may face a fine of up to $500,000 and/or up to 12 months’ imprisonment. The maximum fine for a corporation is $2 million. A director or officer who contravenes Section 32 may face a fine of up to $1.5 million and/or up to 12 months’ imprisonment.

The legislation also identifies aggravating factors that courts must consider when determining penalties, including death or serious injury or illness, recklessness, disregard of an inspector’s order, previous convictions, and prior non-compliance.

For corporations, a second or subsequent offence resulting in death or serious injury to one or more workers within a two-year period can attract a minimum fine of $500,000.

These potential penalties demonstrate why employers should obtain legal advice as soon as an OHSA prosecution becomes a possibility.

Workplace Safety Defence for Ontario Employers

A strong workplace safety defence starts well before a matter reaches trial.

Our employment lawyers can assess whether the employer had an effective health and safety system and whether the available evidence supports the employer’s position.

Important questions may include:

• Were workplace hazards identified?
• Were workers properly trained?
• Were supervisors competent and properly instructed?
• Were safety procedures communicated?
• Were policies actually enforced?
• Were equipment inspections conducted?
• Were previous hazards addressed?
• Were corrective measures documented?
• Did management respond appropriately to complaints?
• Was reasonable care taken in the circumstances?

The answers can be particularly important when an employer is relying on a due diligence defence.

Why Act Quickly After an OHSA Concern?

An employer’s response during the early stages of an OHSA matter can be important.

Evidence may become unavailable. Employees may have different recollections. Documents may be difficult to locate. Workplace conditions may change. Deadlines may expire.

Early legal advice can help employers:

• Preserve relevant evidence.
• Understand their legal obligations
• Respond to Ministry inquiries.
• Assess potential liability.
• Address compliance concerns.
• Evaluate due diligence evidence.
• Consider whether an order should be appealed.
• Prepare for potential OHSA charges.
• Develop an appropriate defence strategy.

How can our employment lawyer help you?

Our lawyers provide legal assistance to employers facing a range of occupational health and safety issues in Ontario.

OHSA Compliance Advice

We help employers understand applicable OHSA duties and identify potential compliance concerns.

Ministry of Labour Investigations

We assist employers responding to Ministry investigations following workplace incidents, complaints, or inspections.

OHSA Inspection Representation

Legal advice can help employers navigate an inspection and respond appropriately to inspectors’ requests and findings.

Orders and Appeals

We review inspector orders and advise employers regarding compliance and potential appeals, including OLRB proceedings.

OHSA Charges and Prosecutions

Where charges are laid, we assess the allegations, evidence, and potential defences and represent employers through the applicable legal process.

Due Diligence Defence

We examine workplace policies, training, supervision, inspections, maintenance, and other evidence relevant to establishing reasonable precautions.

Serious Workplace Incidents

We assist employers dealing with the legal consequences of serious workplace injuries, fatalities, and other reportable incidents.

Corporate and Management Liability

OHSA issues may involve not only the corporation but also supervisors, directors, and officers. We assess potential exposure based on the circumstances and applicable statutory duties.

Key Takeaways

• OHSA Compliance: Ontario employers must comply with workplace health and safety laws.
• Workplace Investigations: Employers may face Ministry of Labour inspections and investigations.
• OHSA Charges: Safety violations can result in prosecutions, fines, and penalties.
• Due Diligence Defence: Employers may defend charges by demonstrating reasonable preventive measures.
• Legal Representation: Our Ontario employment lawyers can assist with investigations, orders, appeals, and prosecutions.