Various statutes impose obligations on employers to take the necessary measures to protect the health and safety of workers, including An Act respecting Occupational health and safety (R.S.Q., c. S-2.1) (hereinafter referred to as the "AROHS"). In the event of a breach of the AROHS, the offender is liable to significant fines, up to a several hundred thousand dollars in cases of subsequent offences.
For this purpose, the inspectors who work for the Commission de la santé et de la sécurité du travail (hereinafter referred to as the "CSST") are resource persons who have powers under the CSST enabling them to intervene to make sure of compliance with the AROHS and its regulations.
For example, they are called upon to determine the causes of an accident and check whether the working conditions include hazards that endanger the safety of the workers and, in such a case, to make sure that they are eliminated at the source.
In this context, an inspector may, at any reasonable hour of the day or night, enter a place of business of an enterprise to which the AROHS applies. At his discretion, he may be accompanied by one or more persons of his choice when carrying out his duties (for example, an engineer, an architect, etc.) (sec. 180 AROHS). The inspector can request access to all the books, registers and records of the employer (sec. 179 AROHS). He may also take samples for analysis, conduct tests and take photographs or make recordings.
The employer should keep a copy or duplicate of everything gathered by the inspector and make sure that the inspector is accompanied by someone acting for the employer throughout his inspection of the enterprise.
It should also be noted that an inspector has no obligation to make an appointment with the representatives of the employer prior to making an inspection. Indeed, an employer subject to the AROHS is required to receive him at any reasonable time, failing which the employer and its representatives are liable to fines. However, the AROHS provides that, upon arriving at a workplace, an inspector must take reasonable steps to advise the employer (sec. 181 AROHS). The representatives of the employer can request that the CSST inspector present a certificate of his office.
A CSST inspector can issue various orders. They could be inconvenient for the employer and have significant financial consequences. The CSST inspector can:
- Issue a remedial order requiring a person to comply with the AROHS or the regulations, and fix the time within which he must comply (sec. 182 AROHS).
- Order the suspension of work or the complete or partial shut-down of a workplace and affix seals (sec. 186 AROHS).
Although it is possible to contest an order or decision of an inspector within ten (10) days, such order or decision is effective immediately. An employer who fails to comply with it could be the subject of a penal complaint (sec. 191 AROHS).
Also, an order suspending work, which is made where a serious hazard exists, must be substantiated in writing.
It should be noted that an inspector's reports might be used to issue an offence report.
The AROHS provides for two kinds of offences in sections 236 and 237. Section 236 provides for a generic offence that applies in any case of a breach of the AROHS or its regulations. Section 237 provides that anyone who, by an act or omission, does anything that directly and seriously compromises the health, safety or physical well being of a worker is guilty of an offence.
Generally, a penal complaint will be filed if that proves to be necessary to achieve the objectives of the AROHS. Several factors will be taken into account when considering whether it is appropriate to commence a penal prosecution against the employer. More particularly, these factors are as follows:
- the seriousness of the offence;
- the specific circumstances of the offence;
- the employer's history with respect to accidents and previous interventions;
- the record with respect to previous offences by the employer in matters of occupational health and safety;
- the cooperation by the employer and its representatives;
- the quality of the employer's management with respect to occupational health and safety considering among other things:
- the degree to which measures to prevent offences were put in place prior to the offence;
- the degree to which the objectives of the AROHS relating to prevention were achieved prior to the offence;
- the implementation, since the offence, of additional measures that achieve the objectives of the AROHS and make a penal prosecution no longer necessary;
- the frequency of the commission of the offence;
- the need for deterrence;
- the technical nature of the offence. 1
These factors as well as the weight given to them will vary according to the circumstances of each matter. 2
In short, it should be remembered that a CSST inspector has broad powers and that his intervention could lead to penal complaints being filed. Therefore, we encourage you to be well-informed of the powers of the inspectors and the potential consequences of their visits to employers' premises.
As you can see, compliance with a remedial order is not a factor considered by the CSST when considering whether it is appropriate to commence a penal prosecution. Therefore, it turns out that even if an employer complies with such an order, a penal complaint may still be filed. We therefore suggest that you make a rigorous analysis of any remedial order and make sure that it is contested within the time period stated above. If your contestation of the remedial order proves to be well-founded, that fact may be used in your favor in the event that a penal complaint is filed concerning the same situation.
1 See: CSST, Soyez plus sécuritaires soyez productif, Cadre d'émission des constats d'infraction, 31 août 2010, p. 2-3, accessible online: "http//www.csst. qc.ca. /publications/" .
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.