Safety News Item

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OHSA prosecutions: the court and new regulations up the ante

Lexology

March 20 2014

Mark E. Geiger

New
developments from the court and new regulations significantly increase
the risks associated with non-compliance with Ontario’s Occupational
Health and Safety Act (the “OHSA”).

In
recent articles and posts, we have reported on both the significant
increases in fines being levied in OHSA cases over the last several
months, and the increased vigilance
on the part of OHSA inspectors bringing charges under the Act. Two
recent developments further this trend with respect to potential
liability, while also increasing what is at risk when there is
non-compliance.

The Court Case: J.R. Contracting Property Services Ltd.

In
this recent case, a company involved in garbage removal and hauling was
engaged to remove shingles from a one storey bungalow. The company
hired workers on an on-call, cash
basis. One of its workers was seriously injured after he slipped and
fell off the roof while tossing shingles from the roof into a bin,
resulting in permanent paralysis of his lower body. Tina Lootawan worked
for J.R. She was responsible for directing workers
to the job, authorizing the work in question, paying them or providing
them with cash advances if needed. Based upon these factors, the court
found that she was a supervisor within the meaning of the OHSA. The
court also found that the injured worker had not
been trained in fall protection and that no fall protection equipment
had been provided in the truck that was used for transportation to the
job site.

The Company was charged and fined $75,000, plus the usual 25% surcharge. Ms. Lootawan however was sentenced to
forty-five days in jail. The court ruled she had failed as a
supervisor to ensure workers used protective devices required by the
OHSA and Regulations and failed to take the reasonable precaution of
ensuring fall protection was provided. Jail time is,
to say the least, highly unusual in OHSA prosecutions. This case is
further evidence that courts are taking a far more serious approach to
the failure by companies and individuals to abide by the OHSA and its
Regulations.

New Regulations

Two further recent changes bring this point home forcibly.

First,
the Ministry has recently distributed proposed new training
requirements for employees working at heights – as in the case above.
This new training protocol will require
training by an ‘approved’ trainer and will apply to all construction
projects once implemented. This is only part of a complete overhaul of
the Health and Safety strategy of the provincial government. That
includes a new Chief Prevention Officer appointed
last year to oversee the new ‘strategy’; increased inspections at night
and on weekends; targeting with respect to the most vulnerable workers,
small businesses and the highest hazards; and new regulations.

Second,
Regulation 297/13, published on November 15, 2013, will come into
effect on July 1, 2014. This Regulation requires OHSA training to be
provided by Ontario employers
for every ‘worker.’ Recall, that ‘worker’ has a broader definition than
‘employee’ in other employment-related legislation. In addition,
supervisors must complete a basic OHSA awareness training program within
one week of performing work as a supervisor.

The
Regulation spells out the training that must be received by both
workers and supervisors and requires that records be kept of when such
training was received. Workers and
supervisors do not require such training if they can prove to the
employer they have received training that complies with the requirements
prior to the Regulation coming into effect. In addition, where an
employer is required to have a health and safety committee,
the employer is required to ‘carry out’ the training program required
for a committee member to become ‘certified,’ and ‘carry out’ includes
paying for the training.

The
new Regulation will affect every employer in the Province. In our view,
the risk of not complying with this new Regulation may be substantial,
especially in a case where
a worker is injured and that worker or his/her supervisor has not
received the training required.

In
our view, the government has not taken sufficient steps to bring these
requirements to the attention of every employer in the Province. There
do not appear to be any exceptions,
so even the employer with one or two workers appears to be caught.

With the recent trend in fines and now imprisonment, non-compliance has become very risky to say the least!

Original Source

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