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11. Enforcement

Workplace inspections are carried out to ensure compliance with the Occupational Health and Safety Act and regulations and to ensure that the internal responsibility system is working. Inspections also provide the workplace parties with access to the special knowledge and expertise in occupational health and safety available from the Ministry of Labour, through inspectors.

This chapter describes how Ontario's occupational health and safety laws are enforced.

How often are inspections conducted?

It depends on the type of workplace, its size and its past record of health and safety. For example, construction projects may be inspected every three or four weeks; a factory may be inspected as problems arise; and a mine may be inspected about three times a year.

Inspections may also be conducted in response to a specific complaint about a workplace. Such complaints are kept confidential.

The inspection involves a thorough examination of the physical condition of the workplace by the inspector, who is usually accompanied by both employer and worker representatives.

What are the powers of an inspector?

To carry out his or her duties, the inspector has the authority to:

• enter any workplace without a warrant or notice [section 54(1)(a)];
• question any person, either privately or in the presence of someone else, who may be connected to an inspection, examination or test [section 54(1)(h)];
• handle, use or test any equipment, machinery, material or agent in the workplace and take away any samples [sections 54(1)(b) and (e)];
• look at any documents or records and take them from the workplace in order to make copies [sections 54(1)(c) and (d)]; ^{[ 1 ]}
• take photographs [section 54(1)(g)];
• require that any part of a workplace, or the entire workplace, not be disturbed for a reasonable period of time in order to conduct an examination, inspection or test [section 54(1)(i)];
• require that any equipment, machinery or process be operated or set in motion or that a system or procedure be carried out that may be relevant to an examination, inquiry or test [section 54(1)(j)];
• look at and copy any material concerning a worker training program [section 54(1)(p)]; ^{[ 2 ]}
• direct a joint committee member representing workers, or a health and safety representative, to inspect the workplace at specified intervals [section 55];
• seize anything that is either given to the inspector or is in plain view, if the inspector believes it is evidence of a contravention of the Act or regulations [section 56.1(1)]; ^{[ 3 ]}
• require the employer, at his or her expense, to have an expert test and provide a report on any equipment, machinery, materials, agents, etc. [section 54(1)(f)];
• require the employer, at his or her expense, to have a professional engineer test any equipment or machinery and verify that it is not likely to endanger a worker [section 54(1)(k)]; and stop the use of anything, pending such testing [section 54(1)(l)];
• require an owner, constructor or employer to provide, at his or her expense, a report from a professional engineer that assesses the structural soundness of a workplace [section 54(1)(m)];
• require the owner of a mine to provide, at his or her expense, an official report from a professional engineer that the ground stability, mining methods and support or rock reinforcement are such that a worker is not likely to be endangered [section 54(1)(n)];
• require an employer, manufacturer, producer, importer, distributor or supplier to provide information about any process or agent used in a workplace, or intended to be used there, and about the manner of its use, including any information on:
  • the ingredients, composition and properties of the agent;
  • the toxicological effects of the agent;
  • the effects when exposed to skin, when inhaled or when ingested;
  • the protective and emergency measures that are or will be used in the event of exposure; and
  • the effect of the use, transport and disposal of the agent [section 54(1)(o)].

Who can accompany the inspector?

In addition to persons selected by the employer, a worker representative has the right to accompany the inspector. This person may be a worker member of the joint committee, a health and safety representative, or another knowledgeable and experienced worker (selected by the union, if there is one) [section 54(3)]. This worker is considered to be at work during the inspection and must be paid at the applicable rate of pay.

If there is no such worker representative, during the inspection the inspector must talk to a reasonable number of workers about their health and safety concerns [section 54(4)].

The inspector can also be accompanied by a person with special, expert or professional knowledge. For example, an inspector may bring an engineer into a workplace to test machinery for purposes of operator safety [section 54(1)(g)]. ^{[ 4 ]}

Everyone in the Workplace is Expected to Co-operate

Every person must do everything in his or her power to assist an inspector in the performance of his or her duties under the Act [section 62(1)].

It is a contravention of the Act to interfere in any way with an inspection. This includes giving false information, failing to give required information or interfering with any monitoring equipment left in the workplace.

Inspector's Orders

The inspector prepares a report and may make recommendations for improved health and safety practices. Where there are contraventions of the Act or the regulations, the inspector will issue written orders to the employer to comply with the law within a certain time period or, if the hazard is imminent, to comply immediately. An inspector's order can require the employer to submit a plan to the ministry, specifying when and how he or she will comply with the order.

Where an order has been made to correct a contravention of the Act or regulations, and the contravention in question is dangerous to the health or safety of a worker, the inspector may also order that:

• any place, equipment, machinery, material, process, etc., not be used until the contravention has been corrected [section 57(6)(a)];
• the work be stopped [section 57(6)(b)];
• the workplace be cleared of workers and access to the workplace be prevented until the hazard is removed [section 57(6)(c)]. No worker can be required or permitted to enter the workplace except to remove the hazard, and then only if the worker is protected from the hazard [section 58];
• any hazardous chemical, physical or biological agent not be used [section 57(8)].

Where the inspector has stopped work, the employer may resume work, or the use of any equipment, machinery, etc., before a further inspection under the following two conditions:

• the employer has notified an inspector that the order has been complied with; and
• a joint committee member representing workers or a health and safety representative advises an inspector that, in his or her opinion, the order has been complied with [section 57(7)].

Employer's Notice of Compliance with an Order

If an inspector has issued an order to an employer to remedy a contravention of the Act or regulations, the employer must send written notification to the ministry within three days of when the employer believes the order has been complied with [section 59(1)].

This notice must be signed by the employer. It must also be accompanied by a signed statement from a worker member of the joint committee or a health and safety representative, indicating that he or she agrees or disagrees with the employer's notice of compliance with the order [section 59(2)(a)].

The committee member or representative can, for any reason, decline to sign such a statement. One reason might be that the member or representative may feel that he or she cannot properly evaluate the employer's compliance with the order. In such a case, the employer must submit, along with the compliance notification, a statement that the member or representative declined to sign the statement of agreement or disagreement [section 59(2)(b)].

The employer must post copies of both the notice of compliance and the original order in a place where they are most likely to be seen by workers. The notice must appear for 14 days [section 59(3)].

The employer's notice of compliance to the ministry does not mean that compliance with an order has been achieved. This can be determined only by an inspector [section 59(4)].

Posting Orders and Reports in the Workplace

When an inspector issues an order or a report of the inspection, a copy of the order or report must be posted in the workplace, where it is most likely to be seen by the workers. A copy must also be given to either the joint health and safety committee or the health and safety representative [section 57(10)].

Can an inspector's orders be appealed?

Yes. Anyone, including a worker or a union, who is affected by an inspector's order can appeal to the Ontario Labour Relations Board (OLRB) within 30 days of the order being issued [section 61(1)]. If an inspector decides not to issue an order, that decision can also be appealed [section 61(5)].

The OLRB will hear and make a decision on the appeal as promptly as possible under the circumstances. The OLRB has the power to suspend an inspector's order until a decision on the appeal has been made.

In making a decision, the OLRB has all the powers of an inspector and can uphold the order of the inspector, rescind it or issue a new order. The decision of the OLRB is final.

Workplace Investigations

What is an investigation?

When a workplace is the site of a serious or fatal injury, an unusual occurrence or a refusal to work, an investigation may be conducted.

Investigations are conducted by a ministry inspector, who is normally accompanied by a representative of the employer and a representative of the workers.

While conducting an investigation, an inspector has all of the powers described earlier in this chapter. Everyone in the workplace is required to co-operate with an inspector during an investigation.

The Scene of a Critical or Fatal Injury

If a person is critically injured or killed at a workplace, no person can alter the scene where the injury occurred in any way without the permission of an inspector.

This does not apply if it is necessary to disturb the scene in order to:

• save a life or relieve human suffering;
• maintain an essential public utility service or public transportation system; or
• prevent unnecessary damage to equipment or other property [section 51(2)].

Offences and Penalties

The ministry may prosecute any person for a contravention of the Act or the regulations, for failing to comply with an order of inspector, a director or the minister. [section 66(1)].

In deciding whether to prosecute, the ministry will take into account the seriousness of the offence and whether there have been repeated contraventions or ignored orders.

If convicted of an offence under the Act, an individual can be fined up to $25,000 and/or imprisoned for up to 12 months. The maximum fine for a corporation convicted of an offence is $500,000 [sections 66(1) and (2)].