HAMILTON CHAPTERHRPA

October 12, 2016

Cynthia C. IngramSenior Associate

Rudner MacDonald, LLP

PROTECT YOURSELFIMPROVE YOUR HEALTH AND SAFETY TRAINING

DISCLAIMERThe user is authorized to use this presentation for the user’s own needs only, and is not authorized to make copies thereof for sale or for use by others.

The information provided in this presentation is in respect of the law of the Province of Ontario only and is intended as general legal information only. This presentation is not provided for the purpose of providing legal advice or a complete statement of the law on the particular topics. Every situation is unique and involves specific legal issues.

If you would like legal advice with respect to the topics discussed in this presentation, we would be pleased to assist you.

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What You Will Take Away

1. Employer Obligations – What every Workplace Should Have

2. Mandatory Training

3. Worker and Supervisor Requirements

4. Bill 132– Workplace Harassment, Violence and Investigations

5. Due Diligence

6. Prosecution and Fines

7. Take Aways

8. Questions

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WHAT EVERY WORKPLACE SHOULD HAVE

Statutory Requirements

Policies

Joint Health and Safety Committee

Mandatory Training

Posting Requirements

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STATUTORY REQUIREMENTS

Accessibility Policy, Training and Plan (AODA)

Harassment Prevention Policy and Training (OHSA)

Health and Safety Policy and Training (OHSA)

Violence Prevention Policy (OHSA)

OHSA Training and Certification

Posters

“Health and Safety at Work” (OHSA)

“What you need to know” (ESA)

“In Case of Injury” (WSIB)

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MANDATORY TRAINING

In November 2013, the MOL introduced new laws (Ont. Reg. 297/13) that require employers to ensure that all workers and supervisors complete mandatory OHS awareness training programs.

The new training requirements became mandatory on July 1, 2014

All workers and supervisors were to complete OHSA Awareness Training and obtain the required certificate

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MANDATORY TRAINING

Employers are required to ensure that workers and supervisors completed the training developed by the MOL or a similar training program that would meet the minimum content requirements by July 1, 2014.

Workers employed after July 1, 2014 must complete the training "as soon as practicable".

Individuals who begin performing work as supervisors after July 1, 2014 must complete the training within 1 week of performing work as a supervisor

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MANDATORY TRAINING

Applies to all workplaces currently covered by the OHSA, regardless of sector

The MOL has not identified a date for renewing the mandatory training after it is completed

Does not replace any sector specific, hazard specific, or competency specific training

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MANDATORY TRAINING

The training obligations may apply broadly because worker and supervisor are broadly defined in the OHSA

Worker: any person who performs work or supplies services for monetary compensation

Supervisor: any person who has charge of a workplace or authority over a worker

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WHO IS A WORKER?

The OHSA defines “worker” as “a person who performs work or supplies services for monetary compensation”

A “worker” is not necessarily an employee of the owner/employer

“Worker” can include a self-employed person, a partner, a sub-trade or an employee of another Employer

Unpaid students or trainees who participate in a placement program have the same rights and duties as paid workers

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“WORKER” – UPDATED DEFINITION

Stronger Workplaces for a Stronger Economy Act, 2014

Sought to provide further protection to vulnerable workers

Amended definition of “worker” in the OHSA to includepeople who are performing work for no compensation,including unpaid interns, trainees, co-op students

closes what many consider to be a gap in the legislation whenit comes to unpaid individuals. It also extends therequirement for mandatory OHSA training to a broader groupof individuals

Volunteers are not included in the new definition

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WORKER REQUIREMENTS

Workers must:

Follow the law – comply with OHSA and regulations

Follow all workplace health and safety policies

Wear and use all protective equipment required by their employer

Report any hazards and/or injuries to their supervisor

Work and conduct themselves in a way that won’t hurt themselves or others

Complete the minimum OHSA training

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MINIMUM CONTENT REQUIREMENTS - WORKER

1. The duties and rights of workers under the OHSA

2. The duties of employers and supervisors under the OHSA

3. The roles of health and safety representatives and joint health and safety committees under the OHSA

4. The roles of the Ministry of Labour, the Workplace Safety and Insurance Board and entities designated under s. 22.5 of the OHSA with respect to occupational health and safety

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MINIMUM CONTENT REQUIREMENTS - WORKER

5. Common workplace hazards

6. The requirements set out in Regulation 860 (Workplace Hazardous Materials Information System (WHMIS)) with respect to information and instruction on controlled products

7. Occupational illness, including latency

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SUPERVISOR REQUIREMENTS

Supervisors must:

Communicate with workers to advise of hazards and dangers in the workplace

Show workers how to work safety

Ensure workers follow the law

Make sure workers wear all proper and required protective equipment

Do everything reasonable (in the circumstances) to protect workers from getting hurt/work-related illnesses

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MINIMUM CONTENT REQUIREMENTS - SUPERVISOR

1. The duties and rights of workers under the OHSA

2. The duties of employers and supervisors under the OHSA

3. The roles of health and safety representatives and joint health and safety committees under the OHSA

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MINIMUM CONTENT REQUIREMENTS - SUPERVISOR

4. The roles of the Ministry of Labour, the Workplace Safety and Insurance Board and entities designated under s. 22.5 of the OHSA with respect to occupational health and safety

5. How to recognize, assess and control workplace hazards, and evaluate those controls

6. Sources of information on OHS

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MANDATORY TRAINING -DOCUMENTATION

The employer must keep a record of the mandatory training, or the exemption to the mandatory training

Compliance with this requirement will likely be a focus in workplace audits and blitzes

2015 Blitz Results: 1402 orders issued for violations involving basic health and safety awareness training of workers (787) and supervisors (615)

Failure to comply with the OHSA Awareness Training requirements is unlawful, and may be compelling evidence of a lack of commitment to OHS

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POSTING REQUIREMENTS

Under the OHSA, employers are required to post:

the Occupational Health and Safety Act*

the employer’s Health and Safety Policy

the Workplace Violence and Workplace Harassment Policy

a listing of the names and work locations of JHSC members

Minutes of JHSC meetings (within 1 week)

*709 orders issued for failure to post OHSA

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QUICK NOTE New Ministry of labour training standards for JHSC

certification training took effect on March 1, 2016

Impacts workplaces with 20 or more workers

At least two members of JHSC certified

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BILL 132September 8, 2016

March 6, 2015 - It’s Never Okay: An Action Plan to Stop Sexual Harassment and Violence

March 8, 2016 - Bill 132 – Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015

Amends the OHSA to expand the obligation under s. 25(2)(h) of the OHSA to include and increase protection from workplace sexual harassment as a safety issue

Creates educational tools and materials for employers

Changes the definition of workplace harassment to include “workplace sexual harassment” throughout the OHSA

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WORKPLACE HARASSMENT

Under the OHSA “workplace harassment” is defined as follows:

a) engaging in a course of vexatious comment or conduct against an employee in a workplace that is known or ought reasonably to be known to be unwelcome, or

(b) workplace sexual harassment.

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WORKPLACE SEXUAL HARASSMENT

Workplace Sexual Harassment: (a) engaging in a course of vexatious comment or conduct against a worker in a workplace because or sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome; or (b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

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CHANGES TO THE OHSA

New statutory duties imposed on employers:

measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, where the employer or supervisor is the alleged harasser;

set out how incidents or complaints of workplace harassment will be investigated and dealt with;

set out how information obtained during an investigation will be kept confidential, unless the disclosure is necessary for the purpose of the investigation or taking corrective action, or is otherwise required by law;

set out how a complainant and an alleged harasser will be informed of the results of the investigation, in writing, and of any corrective action that has been, or will be, taken;

Training under the program and procedures; and

review programs addressing harassment as needed, but at least annually.

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KEY: DUTY TO INVESTIGATE

Statutory duty to investigate “incidents and complaints” of workplace sexual harassment

Not limited to formal complaints

MOL/OHSA inspector has the power to order anemployer to hire an independent third party to conduct aworkplace investigation of harassment, and obtain aninvestigation report at the employer’s expense

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WORKPLACE VIOLENCE OBLIGATIONS

Employers are obliged to provide information, instructionand supervision to protect workers from violence or therisk of violence

Having a Workplace Harassment and Violence Policy isnot enough

Employers must reasonably and properly assess risks inthe workplace

Employers must ensure that workers are provided withappropriate information and instruction regardingworkplace violence or the risk of violence in theworkplace, and how to deal with it

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WORKPLACE VIOLENCE OBLIGATIONS – TAKE AWAYS

Assess the risk of violence in the workplace

– Nature of the workplace

– Nature of the work being performed

– Work environment and conditions

– Nature of your clients/customers/members of the public

Review and consider circumstances found in similar workplaces

Develop and document policies, procedures and programs to identify, control and respond to identified risks of workplace violence and injury

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DUE DILIGENCE & DOCUMENTATION

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What is it?Why do I need it?How do I go about it?

WHAT IS DUE DILIGENCE?

Due diligence is a legal standard which allows the employer a defence to charges under the OHSA

Due diligence is generally comprised of ongoing steps taken by companies and their supervisors to protect the health and safety of workers -show pattern of due diligence over time

Due diligence is determined by your actions before an incident/accident, not after

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WHAT IS DUE DILIGENCE?

The courts and MOL inspectors will generally consider:

– whether all reasonable care and precautions were taken;

– whether the accident was foreseeable; and

– what a reasonable person would have done in the circumstances

A successful due diligence defence means meeting stringent, court-developed standards

This standard for reasonable care is strict and high, but not unreachable

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WHY IS IT IMPORTANT?

Important as a defence to a charge under the OHSA

A defendant must prove that all reasonable steps were taken, in the circumstances, to protect the health and safety of the worker

If successful, the defendant may be successful in obtaining a finding of not guilty

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PROSECUTION AND FINES

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The Increased Enforcement

of the Occupational Health &

Safety Act (OHSA)

TRENDS

In 2010, the Expert Advisory Panel on OHSrecommended tougher enforcement for "serious andwillful violations"

Since 2004, the Ontario government has increasedits inspectorate, leading to more orders andprosecutions

Annual Inspection Blitzes –Safe at Work Ontario

Recent cases show bigger fines in Ontario

Fines are also dramatically increasing in other provinces

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PENALTIES FOR BREACHES OF THE OHSA

Verbal Warnings

Orders (i.e., compliance, stop work)

Tickets under Part 1 of the Provincial Offences Act

– Set fine of $295 plus costs and victim surcharge

Summons under Part 1 of the Provincial Offences Act

– for fines up to $1,000, exclusive of victim surcharge

– can be issued to Worker or Supervisor, not Company

Prosecution pursuant to Part 3 of the Provincial Offences Act

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PUBLIC RELATIONS STRATEGY

To encourage compliance with the OHSA, the Ministry of Labour regularly:

issues news release following convictions of employers, supervisors and directors, with the names published, including all fines exceeding $50,000

publicizes high profile accidents

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PROSECUTION FINES

$500,000 maximum fine per offence for corporations

$25,000 and/or one year imprisonment maximum penalty for individuals

Fines over $1000 are subject to a 25% surcharge

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FACTORS WHEN DETERMINING FINES

Aggravating Factors

Seriousness of the infraction – actual or potential injury

Repeat infraction

Lack of consistent enforcement of OHS rules

Lack of remorse or acknowledgement

Large company

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FACTORS WHEN DETERMINING FINES

Mitigating Factors

No actual or potential injury

Proof of prior discipline

Acknowledgement of wrongdoing and willingness to change behaviour: re-training employees, disciplinary demotion to other work pending re-training

Small company, financial hardship

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INDIVIDUAL LIABILITY IS INCREASING

Increased supervisory, director and officer OHS prosecutions and penalties

– Bill C-45 amendments to the Criminal Code in 2004

– “wanton or reckless disregard” for the lives or safety of others

Fewer personal charges being withdrawn

Crowns are seeking jail terms more aggressively

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R v. METRON

Accident December 24, 2009

4 workers fall 14 floors from a collapsed swing stage

Metron fined $750,000 under the OHSA

Criminal charges laid against Vadim Kazenelson, Project Manager/Supervisor

June 2015 – Kazenelson found guilty of 4 count of criminal negligence causing death and 1 count of criminal negligence causing bodily harm

January 2016 - Kazenelson sentenced to 3½ years in prison

FIRST TIME A SUPERVISOR SENTENCED TO JAIL UNDER BILL C-45

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ELEMENTS OF A DUE DILIGENCE PROGRAM

OHSA policies, practices, procedures and committees

Provide appropriate training and education for employees – regular and ongoing - enforcement

Audit and inspect for hazards – regular and ongoing

Train supervisors to ensure they are competent

Monitor the workplace for compliance

Document and discipline for non-compliance and breach

Have an accident reporting and investigation system in place

DOCUMENTATION!

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GOOD DOCUMENTATION …

A documented system incorporating the elements of due diligence will best position the company and individuals to assert that all reasonable care was taken

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THEREFORE …

Document all ongoing OHS efforts and training

Document in detail: who, what, where, when, and how

Document all ongoing follow-up, such as confirmation of action, reminders to employees, solutions, remedies, rectification

SAFETY IS DUE MORE THAN LIP SERVICE

R. Viterra Inc., 2016 SKQB 269 – Employer able to show it emphasized safety training

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DOCUMENT KNOWING …

Its quality will be held to a strict standard

You may not always be able to rely on the author tofill in the missing details

A judge or adjudicator may review your documentation one day

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DISCIPLINE FOR SAFETYDue diligence efforts can be lost if enforcement is absent or

undocumented

Ensure the following:

Attention to health and safety is a performance expectation for supervisors

Supervisors have the tools and authority to enforce rules with discipline, training and forms

Safety rules state commitment to appropriate discipline if necessary

Proper investigation and gathering of evidence to support discipline – ensure it's complete and accurate without

editorializing, keep original notes, and obtain signed statements

Discipline is carried out and documented

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Moran Mining and Tunnelling Ltd. [2006] ONSC

Facts

A 20-year-old worker died after falling more than 120 feet from an elevated platform in a mine. He was wearing fall arrest protection

At trial, the employer claimed due diligence: it had a policy requiring fall arrest protection in risky circumstances and enforced it

The worker was verbally disciplined for not wearing his harness in the past

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Moran Mining and Tunnelling Ltd. [2006] ONSC

Ruling

The employer's due diligence defence was rejected

The court found that a "culture of discretion" existed in the workplace where workers would decide for themselves when fall protection would be used – if

the risk was perceived as low or the worker felt safe

Company convicted and fined $100,000 plus victim surcharge

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TAKING ACTION

Problem employees will impact your workplace and other employees negatively

All problems must be addressed quickly

Failure to take action can lead others to believe the behaviour or conduct is condoned by the employer

Addressing problems quickly and consistently ensures a healthy work environment

Addressing the problem is the responsibility of the manager/employer, NOT the employee

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TAKING ACTION

Reassess policies and procedures:

(1)After an incident of violence at the workplace;

(2)After an incident of violence at a company with a similar workplace environment;

(3)Upon hearing about an incident of violence occurring at a company carrying on similar business; or

(4)After changes to the workplace environment

Results must be provided to the JHSC

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POLICIES AND MANUALS

Documented policies and procedures are key ingredients to your business success formula

They act as a “go to” guide for employees and managers to know what to do and how to perform their jobs properly

The Manual will set out expectations and privileges, not rights

Provide a clear message on how the employee and the employer will work together to address issues and problems

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POLICY MANUALS –THE BENEFITS

The Manual will:– Allow for consistent and efficient orientation of new

employees

– Establish policies that ensure the company complies with the applicable employment and labour laws

– Resolve disputes by providing an answer before problems worsen

– Foster good communication with employees

– Support good relations between all staff and management by ensuring fair and consistent behaviours

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POLICY MANUALS –THE BENEFITS

When consistently applied, the Manual can:

– establish an efficient workplace;

– create a written record of historical behaviour and practices;

– provide proof of active compliance efforts;

– minimize the risk of employee claims and litigation; and

– help establish a defence to an employee claim or Ministry Order

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FINAL THOUGHTS Review records in regards to all workers placed in your workplace

and facilities

Review policies and procedures with new and young workers

Regularly audit and inspect for workplace hazards and risks

Review and amend your Workplace Violence and Harassment Policies

Develop (with JHSC) written harassment programs and procedures

Create written Investigation Procedures

– Include the procedures in the Workplace Harassment Policy

Ensure policies have clear reporting structures and components

Train on all new policies and procedures

Post all new policies and procedures, as well as updated OHSA

Document all training

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Success depends upon previous

preparation, and without such

preparation there is sure to be failure.

Confucius

QUESTIONS

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PROTECT YOURSELFIMPROVE YOUR HEALTH AND SAFETY TRAINING

CYNTHIA C. INGRAMRUDNER MACDONALD LLP

cingram@rudnermacdonald.com416.640.6402

Web: www.rudnermacdonald.com

Twitter: @CindyIngramLLB

LinkedIn: Connect with me, and visit the Rudner MacDonald Page

Blog: Rudner MacDonald BlogYouTube: Rudner MacDonald channel\