Be Safe News – September 2017
Your Legal Options When the MOL has Given you a Ticket, Summons and/or Order
Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates
The Ministry of Labour’s (“MOL”) Enforcement division is responsible for enforcing the Occupational Health and Safety Act (the “OHSA”) and its regulations. The MOL can visit an employer’s workplace at any time, and has extensive authority to investigate a workplace without any reasonable cause or justification. Most notably, a MOL Inspector has the power to enter and investigate a workplace, including confiscating an employer’s property, without a search warrant or prior notice.
The OHSA provides MOL inspectors with a number of enforcement tools, one of which is the authority to issue a ticket against a workplace party that is found to have contravened the OHSA. Tickets tend to designate low dollar value fines, which are referred to in Ontario Regulation 851 (Industrial Establishments Regulation), under the OHSA, and specified under the Schedules to the Provincial Offences Act. A detailed list of fines as they relate to the various sections of the OHSA can be found on the Ontario Courts website under the OHSA section: http://www.ontariocourts.ca/ocj/how-do-i/set-fines/set-fines-i/.
Currently, the maximum fine resulting from a ticket is $1,000, although most fines do not exceed $300. By contrast, a successful prosecution (also referred to as a “summons”) may result in more severe penalties: individuals may be subject to a maximum fine of $50,000 per offence, or imprisonment, while corporations may be fined up to $500,000 per offence.
In accordance with Ontario’s Provincial Offences Act, the MOL also has the authority to refer any charge against an employer to the Provincial Crown, which can issue a Court summons for any type of OHSA violation. The Crown has the option to initiate a prosecution for certain violations, which can result in significant monetary fines, and the imprisonment of an individual employee or stakeholder in a defendant corporation.
The following are common strategies for responding to, or dealing with, tickets and Orders issued by an MOL Inspector, along with possible responses to a summons issued by the Crown in regard to a charge laid by the MOL.
- Pay the Fine / Ticket
For most tickets, with fines of less than $300, it may be more cost effective to pay the ticket as opposed to disputing same. However, employers should note that Inspectors and decision makers (such as Courts, the MOL and the OLRB) will consider an employer’s “health and safety record” when making decisions with respect to subsequent cases, fines and Compliance Orders. Courts and administrative decision makers reward employers for maintaining safe and functional workplaces, thus maintaining a clean health and safety record, while penalizing those employers whose health and safety record shows numerous previous tickets and violations.
Employers and individuals should note that, in addition to the fine set by the MOL, they will have to pay administrative Provincial Court fees, as well as a “victim fine surcharge”. The “victim fine surcharge” amount varies for fines below $1000, ranging from $10 to $125. For fines over $1000, the victim fine surcharge amounts to 25% of the value of the fine.
Employers should note that in addition to designating a monetary fine, MOL tickets will typically require an employer or an individual to follow up with an Inspector to confirm that they are in substantial compliance with the OHSA. Employers and individuals must discharge their obligations pursuant to the ticket and confirm this with the MOL Inspector who issued the Order to avoid further charges.
- Complying with an MOL Inspector’s Order
In circumstances where a party has been issued an Order by an MOL Inspector, the Order will typically specify a time frame within which the party must comply with the OHSA.
Compliance Orders may also be “time unknown” in that they do not specify an amount of time within which a party must comply with the OHSA. This type of Order will result in a “stop work” or “plan”. The MOL Inspector will engage the party and notify the time requirements for compliance with these types of orders on a case-by-case, or issue-by-issue basis.
Alternatively, the MOL Inspector may issue an Order that must be satisfied “forthwith”, meaning that the Order must be complied with immediately.
Along with any Orders, the Inspector will also provide a Notice of Compliance form. This form is to be completed and signed by the employer and health and safety representative or a joint health and safety committee member. The worker representative must check a box beside the order to indicate agreement or disagreement that compliance has been achieved for the Order(s).
An employer will also be provided with a “Field Visit Report” by the MOL Inspector. Once the Notice of Compliance form has been sent to the Inspector, a copy of the Field Visit Report must be posted in the workplace and a copy must be provided to the worker representative and the joint health and safety committee.
An MOL Inspector will typically conduct a follow-up visit after the issuance of the Field Visit Report, in order to verify that the affected parties are in compliance with the OHSA.
- Appealing an MOL Inspector’s Order
Alternatively, if an employer, constructor, licensee, owner, worker or union who is issued an Order by an MOL Inspector disagrees with the Order, the aggrieved party can appeal the Order to the Ontario Labour Relations Board (“OLRB”) within thirty (30) days of the Order being issued. The party appealing the Order can also ask the OLRB to suspend the Order until the appeal has been decided.
Depending upon the complexity of the issue(s) under review, appealing an order at the OLRB can require between one (1) and several days of hearing. Furthermore, unlike a civil Court appeal, the OLRB cannot issue costs in favour of the winning party. So, even if a party is successful upon appeal to the OLRB, they would still be responsible for absorbing their legal costs.
In rendering a decision, the OLRB has all the powers of an Inspector and has the ability to uphold the Order of the Inspector, rescind it or issue a new Order with an increased fine.
The MOL’s website indicates that a decision of the OLRB in respect of a MOL Inspector’s Order is “final”. However, the Judicial Review Procedure Act permits a party to appeal a decision of the OLRB to the Divisional Court. The Divisional Court does not conduct a new hearing, nor does the Court conduct an appeal in the traditional sense; rather, it reviews the Board’s decision to determine if it was “reasonable” (or “correct”, in limited circumstances).
It appears that the Divisional Court has yet to overturn a decision of the OLRB, clearly indicating that the Court defers to the judgment of the OLRB regarding matters under its jurisdiction.
- Negotiating with the Crown in Response to a Court Summons
If the MOL wishes to initiate a prosecution against an individual or an organization, the Crown will issue a Court summons to the party in question, which will refer to a fine or penalty for the OHSA contravention in question.
If the defendant employer, or individual, does not wish to defend the claim but wishes to negotiate a plea bargain with the Crown, it is welcome to attempt to do so. The party should keep in mind that even if the Crown endorses a lower sentence, a Justice of the Peace in the Provincial Court is authorized to vary the sentence (lower or higher) based on the principles of sentencing and proportionality.
Further, if a defendant enters into a plea bargain, it is typically provided with a time frame within which to pay the fine in question. These “payment plans” vary on a case-by-case basis and can extend for several years to provide a litigant with enough time to pay a significant fine.
Finally, in addition to any monetary fine, the defendant would be responsible for paying any Provincial Court administrative fees as well as the applicable victim fine surcharge.
- Defending the Summons in Provincial Court
In the event that a party wishes to defend itself against a charge under the OHSA, the defendant will have to argue its case in Provincial Court before a Justice of the Peace.
Leaving aside defences that are based on evidentiary matters, procedural issues or disclosure, a defendant employer’s strongest legal defence against a charge by the MOL is that it has exercised “due diligence” (i.e. taken every precaution reasonable in the circumstances) to avoid any risk to the employee, its workforce and/or the public.
If the Provincial Court renders a finding of guilt, an employer can appeal the decision of the Provincial Court to the Ontario Court of Appeal. It is important to keep in mind that the Court of Appeal has the ability to substitute a higher fine or penalty than the one specified in the Provincial Court’s decision. Furthermore, appeals at this level tend to involve very significant fines or penalties (or multiple charges) and can attract negative publicity for a defendant employer.
Key Takeaways for Employers
While acknowledging that a “spot audit” or “blitz inspection” by the MOL can cause a lot of stress among employers and workers, it is important that all affected individuals cooperate with the MOL and its Inspectors at all times. At no point in time should an employer or any employee obstruct, impede, or be non-cooperative with an Inspector or other representatives of the MOL. Doing so could result in an employer and/or its employee(s) being charged with obstructing an Inspector under section 62(1) of the OHSA.
An employer should always take steps to create a safe work environment for its staff members. An employer is best advised to dedicate necessary resources to determine the cause of the ticket, Order or summons, and rectify the situation immediately. The OLRB, Provincial Court and Court of Appeal will be far more likely to entertain an argument that the fine(s) or penalty(ies) initially sought should be lowered if they are presented with evidence of a defendant’s remedial efforts at complying with the OHSA.
Finally, employers should be cognizant of the significance of fines (including non-monetary penalties), Compliance Orders and summons issued by the MOL, and the strict time frames involved with respect to defending claims, complying with Orders and filing appeals. Failure to adhere to these time frames can result in a “default” finding against an employer, which, in extreme cases, can result in hefty monetary fines and/or imprisonment.
Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance.
Understanding Job Burnout & Eight Techniques to Relieve/Prevent It
Written by Jenna Kressler | Curriculum Developer
Sometimes when we have a new job, our dream job, or just killing it in our current position we get so caught up in our job performance we become workaholics. We get consumed with our workload. We take on added tasks when we know our capacity is basically maximized to demonstrate we can handle it. We go above and beyond to ensure our customers or clients are satisfied, even if that means we are answering emails or phone calls after work hours. We often work late and during weekends to prove we are committed and to show we have incredible work ethic.
Our brain is in over-drive: work mode, work mode, work mode. What happened to our personal life? Remember when you met up for a weekly dinner with your group of college friends or had time to walk the dog? That doesn’t happen anymore. You’re always tired and have been dragging yourself to work. Headaches are becoming more frequent, and your body throbs and aches. You’ve been irritable – snapping at your co-workers and even your most prized clients. These are a few of the symptoms and indicators that you are experiencing job burnout.
What is Job Burnout?
Burnout is a state of physical, emotional, and mental exhaustion caused by long-term exposure to demanding work situations. Burnout can be a cumulative result of stress.
What’s the Difference Between Stress and Burnout?
Stress typically involves too many pressures that demand too much of you physically and psychologically, whereas burnout is a cycle of negative emotions, paralysis, and withdrawal, which leads to decreased interest in performing tasks.
- Lack of motivation
- Negative emotions
- Trouble concentrating
- Decreased satisfaction
- Difficulty sleeping
- Loss of appetite
- Weight gain
- Frequent illness
Who is at Risk of Job Burnout?
You may be more likely to experience job burnout if:
- You lack balance between your work life and personal life because you identify strongly with your job
- You try to be everything to everyone
- Your job is to help others (healthcare, counseling, teaching)
- You feel lack of control of your work
Ways to Prevent/Relief Burnout
Whether you do yoga, run, cycle, read, or listen to music, take time for yourself and ensure you have some downtime.
Although we view technology and the Internet as an instant way to communicate and a method to increase productivity, it also can be an added stressor. Disconnect yourself from technology and communications. Put the work phone down. Set boundaries. Respond to work emails during work hours, or set certain times in the evening to check-in. It is important to separate your work life with your personal life.
3. Do What You Love
What’s your passion? Do you play sports? Coach or volunteer? Play an instrument in a band? Family walks in the park? Whatever it may be, get up, get out, and do it!
4. Get Enough Sleep
Individuals vary in how much sleep they need to be able to function the next day. Whether it’s six hours or eight hours, ensure you are getting enough sleep. Lack of sleep leads to decreased motivation, increased stress, constant fatigue, and impairment of mental functioning.
5. Get Organized
Use a calendar, an agenda, or have a to-do list. Prioritize your tasks. This will assist with time management, and knowing what you should focus on rather than becoming overwhelmed by all the different tasks that you think you need to complete immediately.
6. It’s Okay to Say No
When you bite off more than you can chew, you over promise and under deliver. Be comfortable and be confident with saying no. Be able to justify if you’re at your maximum capacity. It won’t be beneficial for your employer for you to take on more than you can handle, as you don’t want to affect the quality or your productivity.
7. Take Breaks
Go for a quick walk around the office or job site. Go outside for a quick breath of fresh air. If you eat lunch at work, try breaking away from your desk and eat outside, or another designated area. This gives you a chance to break away from your desk or work area so your body and mind can recharge and reenergize.
8. Use Your Vacation Days
Using your vacation days or personal time doesn’t mean you’re not a hard worker. Time away from the office or job site to go on a vacation or even a staycation is beneficial for your overall well-being. It helps improve your efficiency and productivity at work, improves your mood, and helps you unwind.
Burnouts can be chronic, and very detrimental to one’s health and job performance. Prevention is key and the most effective approach for addressing job burnout. Not only do you benefit from practicing the above methods of prevention, but others around you will as well. Your co-workers, friends, parents, children, will be receiving your undivided time and attention. Relationships will be stronger, and happier. Time spent with family will be quality, with the added benefit of helping you relax, unplug, and re-set in order to bring your best work self forward when it’s time to head back to the office.
The Connection Between Pay Equity Legislation and Health and Safety
Written by Jennifer Miller | Curriculum Development Coordinator
Pay Equity vs. Equal Pay for Equal Work
The Pay Equity Act requires employers to identify and correct gender discrimination that may be present in their compensation practices and to adjust the wages of employees in female job classes so that they are at least equal to the wages of employees in male job classes when they are found to be comparable in value based on skill, effort, responsibility and working conditions. This is not to be confused with Equal Pay for Equal Work, which is also important, and more straightforward.
Equal Pay for Equal Work means that a man and a woman performing the exact same job (for example, a man and a woman who both work on an assembly line in a manufacturing plant) must earn the same wage despite the difference in sex. Pay equity is not about equal pay for equal work; it’s about comparing the value of jobs typically performed by men or women, then compensating those who fill the job roles according to the job’s value—not its propensity to be a “male” or “female” job.
The Pay Equity Act
In 1967, women were earning .46 for every dollar earned by males. Between 1967 and 1986, efforts were being undertaken to start to close the wage gap. The Equal Wages Guidelines, 1986, (first established in 1978, revised in 1982 and again in 1986) provide guidance on the application of the pay equity provisions under the Canadian Human Rights Act.
The guidelines elaborate on the four factors used to assess the value of work:
- Working conditions
The four guidelines are evaluated and then a value for the work is calculated. The purpose of looking at jobs this way is to determine true job value between a job, such as a daycare provider (typically female-dominated) and comparing it to the value of the job, such as a maintenance person (typically male-dominated). Looking at the jobs and calculating the value based on the four categories listed above may show that the value of the daycare provider’s job class is the same or higher as that of the maintenance person. By pay equity law, the daycare provider must be paid the same or more than the maintenance person. Pay equity is an effective safeguard against under-paying in typically female-dominated industries because the work in those fields has been historically undervalued.
The Pay Equity Act has helped close the wage gap, but not all the way. Since 1998, the wage gap has stalled at 29%.[iv] Although the wage gap doesn’t exist solely due to discrimination, it is a contributing cause. Other factors affecting the gap include differences in hours worked, experience levels, education levels, and different levels of unionization.
What does Pay Equity Have to do with Health and Safety?
The best way to close the wage gap that exists due to discrimination is to follow pay equity legislation; however, even in light of legislation, the gap closure has stalled, and so it stands to reason that in order close the wage gap, more than legislation is required. Employers must work to eliminate male and female-dominated jobs. To start to narrow the gap, women must have access to all jobs, training, and education. Additionally, women must be represented in all jobs.
This is great news for health and safety in the workplace. With women becoming more visible in all industries and sectors, they have started to become more involved in health and safety in the workplace. Diversification is one of the best ways to incorporate fresh new ideas and new and unique health and safety solutions. Complacency is common when it comes to health and safety, and sometimes employers fall into the “that’s how we’ve always done it,” trap. New ideas, thoughts, skill sets, and experiences, brought to the table by men, women, older, younger, new, or seasoned employees are the best remedy for complacency!
Diversification doesn’t just mean ensuring that there’s female representation in your company’s Joint Health and Safety Committee (JHSC) or having a female workplace trainer in place. It also means ensuring that men and/or women are represented in all jobs, that they receive the same training, pay, and advancement opportunities as their counterparts, and that they receive the same encouragement and ability to participate in your workplace health and safety program. Encouraging equal representation in all job roles is an important factor in both reducing the wage gap, but also in promoting an inclusive, equal-opportunity workplace.
Pay equity will ensure that your company’s pay practices are objective. It may also indicate other barriers to employment with your company. Addressing such barriers right away is in the best interest of the company because failing to abide by pay equity or the Human Rights Code is illegal. However, aside from legal implications, any barriers to employment at your company, whether intentional, unintentional or otherwise, may prevent valuable candidates who bring many things of value to the table from ever applying or being interviewed. In today’s competitive job market, your company can’t afford to place such barriers. It is only through diversification, pay equity, equal work for equal pay, and equal access and representation that we may start to see the wage gap decrease, creating a safer and more productive workplace for all.
Pat Lipscombe and Sarah Kin
Written by Jennifer Miller | Curriculum Development Coordinator
At OSG, all of our staff are Health and Safety Leaders. This month, we are featuring two outstanding leaders: Pat Lipscombe and Sarah Kin.
Pat has been an OSG trainer and consultant for over five years. As the self-proclaimed “Safety Cat,” Pat is a very dynamic trainer. He is passionate about educating employers so that they have the tools they need to protect workers. Pat’s specialties include Transportation of Dangerous Goods (TDG), manual handling equipment operation, and training. Pat is OSG’s resident rocker. He sings lead and plays drums in his spare time. His future goals include remaining in the health and safety consulting field, while continuing to pursue his musical interests. Pat is proud of his Aboriginal heritage, and of his four daughters. He enjoys urban exploration – the study of abandoned/hidden man-made places, and he used to be trained as a private detective! Knowing that, it’s no wonder Pat is able to spot hazards with his keen Safety Cat eye!
“Be aware of what’s going on around you.”
Sarah has been with OSG for 15 years. Over those years, she’s held many responsibilities. Her current role is at OSG’s helm as the General Manager. Sarah oversees all departments and ensures their smooth operations and efficiency. Her professional goals include expanding OSG, so that it can reach as many workers as possible with accessible safety training and consulting. Sarah believes that training saves lives, and that the more people OSG is able to train, the more people will return home safely at the end of the workday. Outside of work, Sarah is a passionate dance mom. She’s dedicated countless hours and kilometers over the years, with the payoff being able to see her daughter grow and develop as a dancer. Sarah’s favourite season is summer, and she spends as much time as she can at the lake.
“Health and safety is a critical component no matter the job.”
Written by Sharon Thornton | Sales Manager
Training and communication are key elements in all work environments. Training may include a supervisor or manager orienting and educating a single employee on policies or procedures or an instructor training a group of lift truck operators that have many years of experience. The same basic adult learning and communication principles apply.
The train-the-trainer program helps prepare new trainers with critical training skills and helps educators to respond with methods and strategies to deliver an effective training session.
Our course is designed to help any individual who must deliver communication sessions, and who wants to ensure that the communication and instruction are timely, effective, and memorable. The target audience includes owners, managers, supervisors, and instructors.
Be a Health and Safety Champion!
Written by Jennifer Miller | Curriculum Development Coordinator
Greenfield Energy Centre Is the Health and Safety Champion for the month of September.
Company Name: Greenfield Energy Centre
Description: Power Generation
Industry: Flat Power Generation
Number of employees: 27
Courses taken with OSG:
- Joint Health and Safety Committee Training Pat 1 & 2
- Safe Operation of a Lift Truck
- Working at Heights
- Workplace Violence and Harassment
- Supervisor Competency Training
- Aerial Work Platforms
Greenfield Energy Centre safety tip: Be proactive, not reactive!
About Greenfield Energy Centre:
Greenfield Energy Centre is a combined-cycle power generation facility. They are helping Ontario meet the growing need for electricity. Their Health and Safety Specialist, Wendy Cyr, has described her biggest health and safety challenge as keeping workers motivated to work safely and resist the temptation for complacency. To remedy the problem, Wendy implemented hazard awareness training and daily hazard awareness reviews. She keeps her team of 27 workers engaged and aware under this new hazard identification process.
Greenfield Energy Centre is this month’s health and safety champion because they are using the training they received from OSG to drive positive change in their workplace. Wendy states that she is now using more safety talks and conducting safety tours as part of her workplace’s new approach to hazard awareness. Since their Joint Health and Safety Committee, Working at Heights, and Safe Operation of a Lift Truck training, Greenfield Energy Centres has made many positive changes, implemented new health and safety strategies, and taken a proactive stance against complacency. Wendy also took Supervisor Competency training with OSG, giving her the tools she needs to build a positive safety culture at Greenfield Energy Centre.
For more information on Greenfield Energy Centres, please visit them on the web at http://www.calpine.com/greenfield-energy-centre
Completing an OSG health and safety training course automatically makes your company a champion. However, if your company wishes to be featured in OSG’s Be a Champion feature, please contact your Customer Relationship Manager to request a survey.
Health & Safety in the News
Researched by Jeff Thorne | Manager of Training and Consulting
- Time to regulate occupational health and safety professionals
- Concrete company fined $70K for workplace injury
- Brampton construction company owner jailed for on-the-job injury suffered by employee
Ministry of Labour Blitzes
Researched by Jeff Thorne | Manager of Training and Consulting
Health care sector enforcement initiative – Health & Safety – Healthcare
September 1, 2017 – March 31, 2018
Residential projects – Health & Safety – Construction
September 1, 2017 – November 30, 2017
Falls (ladder safety) – Health & Safety – Construction
October 2, 2017 – November 24, 2017
Falls (including slips and trips) – Health & Safety – Healthcare
October 2, 2017 – November 24, 2017
Upcoming Health & Safety Events
Provided by Nick Hollinger | Marketing & Communications Manager
Southwestern Ontario 2017 PIP Conference & Trade Show
The 2017 Southwestern Ontario Partners in Prevention Conference & Trade Show is taking place at Bingemans Conference Centre in Kitchener on October 25th, 2017. Connect with local health and safety experts and better your workplace.
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