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
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
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
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
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
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!
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