Law Exam Review PDF

Law Exam Review Lecture 7B: Property law Property law: Most is concerned with ownership, buying and selling and inheritance Our concern is with the liability of the owner for accidents to the “entrant”, and with the status of being a “trespasser” and the liability that follows OHS Conce...

Law Exam Review Lecture 7B: Property law Property law: Most is concerned with ownership, buying and selling and inheritance Our concern is with the liability of the owner for accidents to the “entrant”, and with the status of being a “trespasser” and the liability that follows OHS Concern: OHS statutory law does not (usually) cover people who are not workers unless under OHS Act stating “person” in some jurisdictions OHS Manager ○ usually responsible for ensuring that occupiers’ liability is taken care of by the organization’s management system kinds of workplace accidents can harm non-workers ○ Dropping a wrench on a visitor’s head ○ Loose floor tile slip and fall Kinds of non workers Customers Patients Students Kids Places vulnerable Shops arenas Schools Hospitals Municipalities recreational Parks PH concern: PHIs routinely inspect restaurants, pools, schools, day cares, residential institutions Occupiers liability Act:  occupier includes ○ a person who is in physical possession of premises ○ a person who has responsibility for and control over the condition of premises or the activities there carried on or control over who is allowed to enter Premise lands and/or structures ○ Water ○ ships and vessels ○ trailers and portable structures for residence, business or shelter ○ trains, railway cars, vehicles and aircraft (not in operation) Common law duty of care superseded ○ the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons Occupiers duty ○ Owes a duty to take care of all circumstances and that persons entering on the premises, and the property brought are reasonably safe ○ Duty of care provided for applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises ○ except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty ○ Risk willingly assumed duty of care provided for does not apply in respect of risks willingly assumed by the person who enters on the premises occupier owes a duty to the person to not create a danger with intent of doing harm or damage to the person and not act reckless ○ Criminal activity A person who is on premises with the intention of committing or commission of a criminal act will be assumed to have willingly assumed all risks and is subject to the duty of care set out in subsection (1) ○ Trespass and permitted recreational activity person who did a criminal activity is subject to duty of care for the entry is prohibited under the Trespass to Property Act occupier has posted no notice in respect of entry and has not otherwise expressly permitted entry  entry is for the purpose of a recreational activity ○ no fee is paid for by person unless from government, government agency, non-profit recreation club, or association and not being provided with living accommodation ○ The premises referred to in subsection (3) are rural premises Agricultural (orchards, pastures, woodlots) vacant or undeveloped premises forested or wilderness premises golf course when not open utility rights-of-way and corridors unopened road allowances private roads reasonably marked by notice recreational trails reasonably marked by notice portage routes ○ Employer and employee relationships Act should not be construed to affect the rights, duties and liabilities of the relationship ○ Application of Negligence Act applies with respect to causes of action to which the Occupier’s Liability Act applies ○ Act binds Crown Occupier’s Liability Act binds the Crown, subject to the Proceedings Against the Crown Act Exception ○ does not apply to the Crown or to any municipal corporation where they are occupiers of a public highway or a public road Trespass to Property Act: Is both a ○ a regulatory regime (prosecutions) prosecution by the state Max $10,000 fine, going to the state function is deterrence no need to show harm to the occupier ○ civil liability regime (codified private law) occupier sues trespasser occupier must show the trespass caused harm  no maximum $ for damages (open-ended) function is compensation Definitions ○ occupier includes a person who is in physical possession of premises a person who has responsibility for and control over the condition of premises or the activities there carried on or control over who is allowed to enter Premise ○ lands and/or structures Water ships and vessels trailers and portable structures for residence, business or shelter trains, railway cars, vehicles and aircraft (not in operation) Trespass an offence ○ Every person who is not acting under a right or authority conferred by law and who without permission from the occupier enters or engages in an activity on-premises and doesn’t leave immediately when told to do so guilty of an offence and is liable to a fine of $10,000 or less Colour of right as a defence ○ a defence to a charge under subsection (1) in respect of land that the person charged reasonably believed that they had title to or an interest in the land that entitled them to do the act complained of Prohibition of entry ○ Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises that is An agricultural land (garden, field) Enclosed area (no humans in or no animals out) Implied permission to use approach to door ○ a presumption that access for lawful purposes to the door of a building on premises is not prohibited Limited permission ○ Notice or additional notice one or more particular activities are permitted, all other activities and entry for the purpose are prohibited shall be construed to be for greater certainty only Limited prohibition ○ Where entry on premises is not prohibited and notice is given that a particular activity is prohibited, that activity and entry for the purpose is  prohibited and all other activities and entry for the purpose are not prohibited Method of giving notice ○ Notice may be given orally or in writing Posted signs marking system (red, green, yellow) ○ Form of sign A sign naming an activity or showing a graphic representation of an activity is sufficient for notice A sign naming an activity drawn through the name or showing a graphic representation of an activity with an oblique line is sufficient for notice Red markings ○ No trespassing Yellow marking ○ It depends (whatever we feel like saying today) Green markings ○ Allowed to pass The size of the sign must be a circle 10cm in diameter Must be made visible throughout the day Arrest without warrant on premises ○ A police officer, occupier, or a person authorized by the occupier may arrest without warrant any person they believe on reasonable and probable grounds to be on the premises Delivery to police officer If the person who makes an arrest is not an officer, they must promptly call for the assistance of a police officer and give custody Arrest without warrant off-premises ○ Where a police officer believes on reasonable and probable grounds and has made a fresh departure from the premises, and the person refuses to give his or her name and address or gives fake identification the police officer may arrest the person without a warrant Damage award ○ Where a person is convicted of an offence and a person has suffered damage caused by the person sentenced during the commission of the offence, the court can, on the request of the prosecutor and with the consent of the person who suffered the damage determine damages for  repayment Enforcement ○ judgement for damages and award for costs may be filed in a small claims court and shall be deemed to be a judgment or order of that court Lecture 7A: OHS 1 Internal Responsibility System (IRS): Everyone is personally and directly responsible for health and safety at their job depends on their authority for OHS ○ ERS and IRS Government doesn’t directly make your workplace safe (they don't care about you) ○ Within the IRS everyone as an individual Committee’s and the OHS managers don’t make your workplace safe (they don't care about you) Responsibilities the employer is primarily responsible for OHS employer has the most duties and the broadest duties under IRS the employer, usually a corporation, is a legal fiction ○ They are idiots who do not do work, but people do every individual has duties, which depend on the individual’s role/authority IRS is not a partnership between ○ employer and employees ○ labour and management IRS is not a two-party system (multi-party)  Core concept of IRS ○ the intellectual or philosophical framework that knits together and makes sense of all of our big ideas in OHS, and it helps resolve many of our current issues in OHS It’s a framework for due diligence It animates the OHS Management System It’s 90% of what people call a “Safety Culture” It resolves conflict between a “systems approach” and behaviour-based safety (BBS) It overcomes complacency and plateauing It has evolved to a “Phase Two” (quality and creativity) History, I guess ○ IRS is the philosophy behind the OHSA ○ The IRS is a way of allocating responsibility, authority and accountability for safety that precedes law ○ First named in the 1976 Ham Royal Commission Report ○ Not mentioned directly in OHS legislation, except NS ○ IRS name is 45 years old ○ Is Mis-described, misunderstood, and under-utilized ○ Confirmed repeatedly: Burkett, Mckenzie-Laskin, MacDonald, Richards enquiries/commissions ○ James Ham got it right in 1976 OHS should be integrated into production; it’s not a separate function Everyone should be doing OHS directly as part of his or her job The “Frat House” Problem ○ “Everyone shares the responsibility for the health and safety of persons at the workplace.” Is this enough? What’s missing? The “Spiderman Principle” ○ “With great power comes great responsibility.” (with authority comes responsibility) Responsibility and the Org Chart ○ Everyone does OHS in a way that matches their position in the organizational chart ○ If you understand the scope of a person’s authority and control, then you have a good idea of what their OHS activities should be Basic Structure of the IRS  Activities Match Authority & Control Direct versus Contributive  Wrong IRS Description ○ Set of three rights only To know about hazards To refuse unsafe work To participate (through committee)” ○ Missing the main element – the personal duties of everyone ○ The IRS as Rights (bad, big no-no) vs as Duties (good) with Ancillary Rights ○ IRS as Labour Relations Labour and management co-manage OHS through the Committee. The Committee IS the IRS The “labour relations” version of the IRS is missing the personal contribution of individuals Correct IRS description ○ The IRS is An element of the OHS management system Something you already have Individualistic About the personal responsibility of each individual primarily about duties monitored and supported by the committee connected to due diligence (tells us who must be duly diligent) If it works well, it will ensure regulatory compliance ○ Personal duties  ○ Direct Causes of Losses ○ Root Causes of Losses Power of the IRS ○ the only philosophy that captures the knowledge, experience, skill, insight, observational position, initiative, creativity and enthusiasm of every human  mind in the workplace ○ the ultimate expression of respect for the human element in the workplace ○ Values life and health Openness personal responsibility objective problem-solving ○ IRS is the “people framework” (where the management system is built) ○ OHS management system without the IRS is lifeless ○ Programs and techniques are built on top of and around the IRS ○ Result A successful IRS will result in risk being continually driven down so that there will be progressively longer intervals between accidents or work-related illnesses At each level ○ IRS is based on an integration of OHS into every individual’s job at every level of the hierarchy Front-line Workers Following regulatory procedures Following employer's procedures Following supervisor's procedures Identifying defects, contraventions and dangers Identifying opportunities for improvement Applying discretion to solve OHS problems Reporting unsolvable problems and opportunities for improvement Front-line Supervisors Coaching and training Job observation Job Planning Safety talks and tailboard conferences Enforcement of rules and regulations Discipline Taking problems and opportunities to senior management Managers OHS Performance evaluation Holding others accountable Implementing programs Considering system-wide problems Taking problems and opportunities to more senior  management Senior People Policy Competent Professionals Sufficient Resource Allocation Leadership Holding Subordinates Accountable Ensuring the development of an OHS System Ensuring Periodic "System Audits" ○ IRS is a "Dynamic Machine" Most OHS problems are dealt with on an on-going basis while doing the operative work When an operative worker sees a problem beyond his or her authority or skill, it is tossed as a "hot potato" to the supervisor - duty to report upwards Reporting and Responding Nova Scotia Legislation ○ IRS is based on the principle that they share the responsibility for the health and safety of persons at the workplace Employers Contractors Constructors Employees self-employed owner of a workplace a supplier of goods provider of an occupational health or safety service an architect professional engineer ○ assumes that the primary responsibility for creating and maintaining a safe  and healthy workplace should be that of each of these parties ○ includes a framework for participation, transfer of information and refusal of unsafe work, all of which are necessary for the parties to carry out their responsibilities under this Act and the regulations ○ supplemented by the role of the OHS Division of the Department of Labour to establish and clarify the responsibilities of the parties under the law, to support them in carrying out their responsibilities and to intervene appropriately when those responsibilities are not carried out OHS Act: Regulations Possible Under the Ontario OHSA ○ Lieutenant Governor in Council may make such regulations as are advisable for the health or safety of persons in or about a workplace ○ Without limiting the generality of subsection (1), the Lieutenant Governor in Council may make regulations defining any word or expression used in this Act or the regulations that are not defined in this Act. Construction Projects Industrial Establishments Mines and Mining Plants Designated Substances ○ Acrylonitrile ○ Arsenic ○ Asbestos ○ Asbestos on Construction Projects and in ○ Buildings and Repair Operations ○ Benzene ○ Coke Oven Emissions ○ Ethylene Oxide ○ Isocyanates ○ Lead ○ Mercury ○ Silica  ○ Vinyl Chloride OHSA Definitions ○ Board means the Ontario Labour Relations Board ○ certified member means a committee member who is certified under section 7.6 ○ Committee means a joint health and safety committee continued under this Act ○ Chief Prevention Officer means the Chief Prevention Officer appointed under subsection 22.3 ○ competent person means a person who is qualified (has knowledge, training and experience) is familiar with the provisions of this Act and the regulations that apply to the work has knowledge of any potential or actual danger to health or safety in the workplace ○ Construction Erection alteration repair Dismantling demolition structural maintenance Painting land clearing earth moving grading Excavating trenching digging boring drilling Blasting concreting installation of any machinery or plant anything except a mine ○ Project a construction project, whether public or private ○ constructor a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by themself or by more than one employer ○ Deputy Minister  means the Deputy Minister of Labour ○ designated substance a biological, chemical or physical agent or combination thereof prescribed as a designated substance to which the exposure of a worker is prohibited, regulated, restricted, limited or controlled ○ Director an inspector under this Act who is appointed as a Director for the purposes of this Act ○ Employer a person who employs or contracts for the services of one or more workers ○ Factory Means a building or place other than a mine, mining plant or place where homework is carried on where ○ any manufacturing process or assembling in connection with the manufacturing of any goods or products is carried on ○ in preparing, inspecting, manufacturing, finishing, repairing, warehousing, cleaning or adapting for hire or sale any substance, article or thing, energy is used to work any machinery or device or modified in any manner ○ any work is performed by way of trade or for the purposes of gain in or incidental to the making of any goods, substance, article, thing or part ○ any work is performed by way of trade or for the purposes of gain in or incidental to the altering, demolishing, repairing, maintaining, ornamenting, finishing, storing, cleaning, washing or adapting for sale of any goods, substance, article or thing laundry including a laundry operated in conjunction with a public or private hospital, a hotel, a public or private institution for religious, charitable or educational purposes logging operation ○ hazardous material a biological or chemical agent named or described in the regulations as a hazardous material ○ hazardous physical agent a physical agent named or described in the regulations as a hazardous physical agent ○ health and safety representative a health and safety representative selected under this Act ○ Homework the doing of any work in the manufacture, preparation,  improvement, repair, alteration, assembly or completion of any article or thing or any part thereof by a person at “home” ○ industrial establishment an office building, factory, arena, shop or office, and any land, buildings and structures ○ Inspector an inspector appointed for the purposes of this Act and includes a Director ○ labour relations officer a labour relations officer appointed under the Labour Relations Act,1995 ○ “Licensee” a person who holds a licence under Part III of the Crown Forest Sustainability Act, 1994 ○ Logging the operation of felling or trimming trees for commercial or industrial purposes (Logging into “factory” and then into “industrial establishment”) ○ Mine any work or undertaking for the purpose of opening up, proving, removing or extracting any metallic or non-metallic mineral or mineral-bearing substance, rock, earth, clay, sand or gravel ○ mining plant any roasting or smelting furnace, concentrator, mill or place used for or in connection with washing, crushing, grinding, sifting, reducing, leaching, roasting, smelting, refining, treating or research on any substance mentioned in the definition of "mine" ○ Minister and Ministry means the Minister of Labour ○ occupational illness a condition that results from exposure in a workplace to a physical, chemical or biological agent to the extent that the normal physiological mechanisms are affected and or impaired entitled to benefits under the Workplace Safety and Insurance Act ○ Office of the Employer Adviser the office continued under subsection 176 (2) of the Workplace Safety and Insurance Act ○ Office of the Worker Adviser the office continued under subsection 176 (1) of the Workplace Safety and Insurance Act ○ Owner a trustee; receiver, mortgagee in possession, tenant, lessee, occupier or someone on behalf of any lands or premises used or to be used as a workplace  ○ Prescribed means prescribed by a regulation made under this Act ○ Regulations means the regulations made under this Act ○ Shop a building, booth or stall or a part of such building, booth or stall where goods are handled, exposed or offered for sale or where services are offered for sale ○ Supervisor a person who has charge of a workplace or authority over a worker ○ trade union defined in the Labour Relations Act that has the status of exclusive bargaining agent under that Act ○ Worker A person who performs work or supplies services for monetary compensation A secondary school student who performs work or supplies services for no monetary compensation under a work experience program (co-op) A person who performs work or supplies services for no monetary compensation under a program approved by a college or university (still co-op) other persons as may be prescribed who perform work or supply services to an employer for no monetary compensation Does not include inmates or mans at correctional facilities ○ Workplace any land, premises, location or thing at, upon, in or near which a worker works Part 1 application: Application of the OHSA ○ binds the Crown and applies to an employee in the service of the Crown or an agency, board, commission or corporation that exercises any function assigned or delegated to it by the Crown ○ Despite anything in any general or special Act, the provisions of this Act and the regulations prevail ○ does not apply to work performed by the owner, occupant, a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used doesn’t apply to farming operations, a person employed as a teacher as defined in the Education Act or teaching assistant of the academic staff Part 2 administration:  Administration of the OHSA ○ The Minister is responsible for the administration of this Act ○ Powers of Minister To promote occupational health and safety and to promote the prevention of workplace injuries and occupational diseases To promote public awareness of occupational health and safety To educate employers, workers and other persons about occupational health and safety To foster a commitment to occupational health and safety among employers, workers and others To make grants, in such amounts and on such terms as the Minister considers advisable, to support occupational health and safety ○ Duty to consider In administering OHSA, the Minister must consider advice that is provided to the Minister under OHSA ○ Delegation of powers under OHSA or the regulations any power or duty is granted to or vested in the Minister or the Deputy Minister They may in writing delegate that power or duty from time to time to any employee in the Ministry subject to such limitations, restrictions, conditions and requirements Such persons as may be necessary to administer and enforce as inspectors by the Deputy Minister and the Deputy Minister may designate one or more of the inspectors as a Director or Directors A Director may exercise any of the powers or perform any of the duties of an inspector under this OHSA or the regulations The Deputy Minister must issue a certificate of appointment, bearing his signature or a facsimile to every inspector Every inspector, in the exercise of any powers or duties under this Act, must produce his or her certificate of appointment upon request Advisory Committees ○ Minister may appoint committees (which are not committees) or persons to assist, advise, inquire and/or report to the Minister on any matter arising under this Act Ministry of Labour (MOL) Funding ○ The Workplace Safety and Insurance Board shall require employers under the Workplace Safety and Insurance Act to make payments to defray the cost of administering this Act and the regulations ○ Workplace Safety and Insurance Board shall remit the money collected from employers under this section to the Minister of Finance Duties in the OHSA: Duties  ○ Duties Generally ○ Constructor and Contractor Duties ○ Employer Duties ○ Worker Duties ○ Supervisor Duties ○ Directors and Officers Duties ○ Property Owners’ Duties ○ Suppliers’ Duties ○ Architects and Engineers’ Duties Ask for each one, “what would be due diligence for this duty?” What sort of “program” might be developed within an OHS management system to ensure compliance with the duty? Ideas about Duties ○ Personal ○ Can't be delegated to avoid liability ○ Can't be contracted out of ○ Interlocked - employer, supervisor and worker duties are integrated ○ Some are "regulation dependent" - where the duty says "as prescribed" ○ Some are "regulation independent" ○ The duties are broad and flexible and must be applied to any given situation ○ The courts have interpreted some duties to mean other than what they seem to say on the surface - "judicial (or common law) interpretation" ○ Due diligence is a defence to a charge that one has breached a duty Part 3 Constructor and Licensee Duties (OHSA): Constructor Duties Ontario ○ If the work is a “construction project”, then the contractor might be the “constructor” or not. The owner or the general contractor can be the constructor it’s a question of who is in control of all the subcontractors ○ A constructor shall ensure, on a project undertaken by the constructor that the measures and procedures prescribed by this Act and the regulations are carried out on the project every employer and every worker performing work on the project complies with this Act and the regulations the health and safety of workers on the project is protected ○ Where so prescribed, a constructor must give to a Director notice in writing of the project before commencing any work on a project, containing the information as prescribed OHSA Employer Duties: Employer Duties Ontario ○ An employer must ensure that equipment, materials and protective devices as prescribed are  provided and in good condition measures and procedures prescribed are carried out in the workplace equipment, materials and protective devices provided by the employer are used as prescribed building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, is capable of supporting any loads that may be applied to it ○ Without limiting the strict duty imposed by subsection (1), an employer must provide information, instruction and supervision to a worker to protect the health or safety of the worker in a medical emergency for the purpose of diagnosis or treatment, provide information in the possession of the employer, including confidential business information, to a legally qualified medical practitioner and to other people when appointing a supervisor, appoint a competent person acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, or equipment of a biological, chemical or physical agent afford assistance and co-operation to a committee and a health and safety representative in the carrying out by the committee and the health and safety representative of any of their functions only employ in or about a workplace a person over such age not knowingly permit a person who is under such age to be in or about a workplace take every precaution reasonable in the circumstances for the protection of a worker post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers prepare and review at least annually a written occupational health and safety policy and develop and maintain a program to implement that policy post at a conspicuous location in the workplace a copy of the occupational health and safety policy provide to the committee or to a health and safety representative the results of a report respecting occupational health and safety that is in the employer's possession advise workers of the results of a report referred to in clause (1) (make a paper copy available on request) notify a Director if a committee or a health and safety  representative, if any, has identified potential structural inadequacies of a building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, as a source of danger or hazard to worker ○ For clause (2)(c), an employer may appoint himself as a supervisor where the employer is a competent person ○ For clause (2)(j), does not apply with respect to a workplace at which five or fewer workers are regularly employed ○ For clause (2)(n), does not apply to an employer that owns the workplace ○ Footwear An employer must not require a worker to wear footwear with an elevated heel unless it is required ○ Exception Subsection (1) does not apply to the entertainment and advertising industry Definitions ○ “entertainment and advertising industry” the industry of producing live or broadcast performances, or visual, audio or audio-visual recordings of performances, in any medium or format ○ “Performance” a performance of any kind, including theatre, dance, ice skating, comedy, musical productions, variety, circus, concerts, opera, modelling and voice-overs Naloxone ○ For opioid overdose kits at a workplace, the employer must provide and maintain in good condition a naloxone kit in that workplace comply with any other prescribed requirements respecting the provision and maintenance of naloxone kits and the training ○ Location of kit employer must ensure that at any time there are workers in the workplace, the naloxone kit is in charge of a trained worker who works in the vicinity of the kit ○ Training must include training to recognize an opioid overdose, to administer naloxone and to acquaint the worker with any hazards related to the administration of naloxone ○ Limit on disclosure No employer can disclose to any person more personal information than is reasonably necessary to comply with this section violence and harassment ○ Employer must prepare a policy for workplace violence  prepare a policy for workplace harassment review the policies as often as is necessary, but at least annually ○ Written form, posting policies must be in written form and must be posted at a conspicuous place in the workplace ○ Exception Subsection (2) does not apply if the number of workers regularly employed at the workplace is five or fewer, unless an inspector orders otherwise ○ Program employer must develop and maintain a program to implement the policy for workplace violence OHSA Worker Duties: Worker Duties Ontario ○ A worker must work in compliance with the provisions of this Act and the regulations use or wear the equipment, protective devices or clothing that the worker's employer requires report to his or her employer or supervisor the absence of or defect in any equipment or protective device report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard ○ No work can remove or make ineffective any protective device required by the regulations or by his or her employer, without providing an adequate temporary protective device use or operate any equipment, machine, device or thing or work in a manner that may endanger themself or any other worker engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct ○ Consent to medical surveillance worker is not required to participate in a prescribed medical surveillance program unless the worker consents to do so OHSA Supervisor Duties: Supervisor Duties Ontario ○ supervisor must ensure that a worker, works in the manner and with the protective devices, measures and procedures required by this Act and the regulations uses or wears the equipment, protective devices or clothing that the worker's employer requires ○ Without limiting the duties, supervisors must advise a worker of the existence of any potential or actual danger to  the health or safety provide a worker with written instructions as to the measures and procedures to be taken for protection take every precaution reasonable in the circumstances for the protection of a worker Directors' and Officers' Duties Ontario ○ Every director and every officer of a corporation shall take all reasonable care to ensure that the corporation complies with Act and Regulations orders and requirements of inspectors and Directors orders of the Minister OHSA Property Owner Duties: Property Owner Duties Ontario ○ owner of a workplace that is not a project must ensure that Facilities are provided and maintained the workplace complies with the regulations no workplace is constructed, developed, reconstructed, altered or added to except in compliance with this Act and the regulations where so prescribed, furnish to a Director any drawings, plans or specifications of any workplace Supplier of Leased Equipment Ontario ○ Every person who supplies any machine, device, tool or equipment under any rental, leasing or similar arrangement for use in or about a workplace must ensure that the machine, device, tool or equipment is in good condition and complies with this Act and the regulations The person responsible for the machine, device, tool or equipment is maintained and in good condition Penalties: every person who contravenes or fails to comply is guilty of an offence and liable to ○ max fine of $500,000 or imprisonment for a term of 12 months, or to both provision of this Act or the regulations an order or requirement of an inspector or a Director an order of the Minister If a corporation is convicted of an offence ○ max fine of $1,500,000 A director or officer of a corporation who contravenes or fails to comply with section 32 is guilty of an offence and liable to ○ max fine of $1,500,000 or imprisonment for a term of 12 months, or to both Aggravating factors  ○ Each of the following circumstances is an aggravating factor to determine a penalty The offence resulted in the death, serious injury or illness of one or more workers The defendant committed the offence recklessly The defendant disregarded an order of an inspector The defendant was previously convicted of an offence under this or another Act The defendant has a record of prior non-compliance with this Act or the regulations The defendant lacks remorse. There is an element of moral blameworthiness to the defendant’s conduct. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs. After the commission of the offence, the defendant attempted to conceal the commission of the offence from the Ministry, or other public authorities or failed to co-operate with the Ministry or other public authorities. Any other circumstance that is prescribed as an aggravating factor Lecture 8: OHS 2 Right to participate: Ontario The Worker Health and Safety Representative ○ At a project or other workplace where no committee is required under section 9 and the number of workers regularly exceeds 5, the constructor or employer must have workers select at least one health and safety representative who do not exercise managerial functions ○ If no health and safety representative or committee is required, the Minister may, by order in writing require the constructor or employer to have workers select at least one health and safety representative who do not exercise managerial functions and may provide in the order for the qualifications of such representatives ○ Minister may from time to time give directions ○ the Minister shall consider the matters set out in subsection 9(5) ○ Workers or trade unions select health and safety representitives ○ health and safety representatives must inspect the physical condition of the workplace at least once a month, if not, a year (Unless otherwise  required by the regulations or by inspectors orders) ○ Inspections must be undertaken in accordance with a schedule agreed upon by the constructor or employer and the health and safety representative ○ constructor, employer and workers must provide info and assistance to health and safety representatives for inspections ○ health and safety representative has power to identify situations that may be a source of danger or hazard to workers and to make recommendations or report their findings to workers, employer, and trade unions to obtain information from the constructor or employer concerning the conducting or taking of tests of any equipment, machine, device, article, thing, material or biological, chemical or physical agent in or about a workplace to be consulted about, and be present at the beginning of, testing conducted in or about the workplace if the representative believes their presence is required to ensure that valid testing procedures and valid to obtain info from the constructor or employer for the identification of potential or existing hazards of materials, processes or equipment health and safety experience and work practices and standards in similar or other industries the constructor or employer has knowledge of ○ Response to recommendations A constructor or employer who receives written recommendations from H&S representatives must respond in writing in 21 days Response must contain a timetable for implementing the recommendations ○ H&S representative can inspect the place where the accident occurred and any machine, device or thing, and report their findings in writing to a Director if a person was killed or critically injured Ontario The Joint Health and Safety Committee (JHSC): Subject to subsection (3), this section does not apply ○ to a constructor at a project at which work is expected to last less than 3 months ○ to a prescribed employer or workplace or class of employers or  workplaces joint health and safety committee is required ○ at a workplace at which 20 or more workers are regularly employed ○ at a workplace in which an order to an employer is in effect under section 33 ○ at a workplace, other than a construction project in which 19 or fewer workers are regularly employed in which a regulation concerning designated substances applies Minister’s order ○ the Minister may, by order in writing, require or permit a constructor or an employer to establish and maintain one or more joint health and safety committees for a workplace ○ The Minister may designate a worker at a workplace who is not a member of the committee to inspect the physical condition of the workplace and to exercise a committee member’s rights and responsibilities require the employer to provide training to the worker Establishment of committee ○ constructors or employers must cause a joint health and safety committee to be established and maintained at the workplace unless the Minister is satisfied The minister must consider the ○ nature of the work being done ○ request of a constructor, an employer, a group of workers or the trade union or trade unions representing the workers in a workplace ○ frequency of illness or injury in the workplace or in the industry of which the constructor or employer is a part of ○ existence of health and safety programs and procedures in the workplace and the effectiveness ○ other matters as the Minister considers advisable Composition of committee ○ the committee must consist of At least 2 people where there are 50 or fewer workers At least 4 people where there are 50 or more workers ○ At least half of the committee should be working that don’t act like managers ○ A member of the committee who ceases to be employed at the workplace ceases to be a member of the Committee ○ 2 of the members of a committee shall co-chair the committee (one selected by worker members, one chosen by manager members) Certification requirement  ○ a constructor or employer must ensure that the co-chair committee are certified members does not apply to a project where less than 50 workers are regularly employed or that is expected to last less than 3 months Chief Prevention Officer ○ Certifies committee members who fulfill specified training requirements ○ Certification of members May establish training and other requirements that a committee member must fulfil to become a certified member Certification training ○ An employer must carry out training programs necessary to enable a committee member to become a certified member, and the programs must be selected following the training and other requirements established by the Chief Prevention Officer If no member representing workers is a certified member, the workers or the trade unions who selected the members representing workers must select from among them one or more who are to become certified Replacement of certified member ○ If a certified member resigns or is unable to act, the constructor or employer shall, within a reasonable time, take all steps necessary to ensure that the requirement set out is met The committee has the power to ○ identify situations that may be a source of danger or hazard to workers ○ make recommendations to the constructor or employer and the workers for the improvement of the health and safety of workers ○ recommend to the constructor or employer and the workers the establishment, maintenance and monitoring of programs, measures and procedures respecting the health or safety of workers ○ obtain info from the constructor or employer for identification of potential or existing hazards of materials, processes or equipment health and safety experience and work practices and standards in similar or other industries of which the constructor or employer has knowledge obtain info concerning the conducting or taking of tests of any equipment, machine, device, article, thing, material or biological, chemical or physical agent in or about a workplace be consulted about, and have a designated member representing workers be present at the beginning of testing be used and valid ○ members of the  committee who represent workers must designate one of them who is entitled to be present at the beginning of testing Powers of co-chairs ○ if the committee has failed to reach a consensus about making recommendations after attempting in good faith to do so, either co-chair of the committee has the power to make written recommendations to the constructor or employer ○ constructor or employer who receives written recommendations from a committee or co-chair must respond in writing within 21 days and must have a timetable for implementing the recommendations Inspections ○ members of a committee who represent workers must designate a member representing workers to inspect the physical condition of the workplace at least once a month or at least once a year for specific areas (certified member if possible) ○ constructor, employer and workers must provide info and assistance to JHSC for inspections ○ situations that may be a source of danger or hazard should be informed to the committee in a reasonable time Notice of accident, inspection by committee member ○ can inspect the place where the accident occurred and any machine, device or thing, and report their findings in writing to a Director or committee if a person was killed or critically injured Posting of names and work locations ○ A constructor or an employer required to establish a committee must post and keep posted at the workplace the names and work locations of the committee members Meetings ○ Once every 3 months under the minister’s order Entitlement to time from work ○ A member of a committee is entitled to one hour or such longer period of time for committee meeting Time necessary to attend meetings Time necessary to carry out member duties Entitlement to be paid ○ the member's employer must pay the member for those times at the member's regular or premium rate if deemed at work does not apply with respect to workers who are paid by the Workplace Safety and Insurance Board for the time spent fulfilling the requirements for becoming certified  Summary: number of workers Ontario The Worker Trades Committee on Construction Projects: Worker trades committee ○ Committee must establish WTC for project if under 50 workers or if project is less than 3 months ○ members of a worker trades committee must represent workers employed in each of the trades at the workplace ○ the function of a worker trades committee to inform the committee at the workplace of the health and safety concerns of the workers employed Ontario Information to the Committee: Occupational Hygiene Reports ○ constructor or employer at a workplace must have strategies for investigating industrial hygiene at the workplace and tell H&S representatives or committee Right to refuse unsafe work: Overview ○ Some people have a limited right to refuse ○ All others must follow the section 43 procedure ○ The worker has reason to believe there is a danger and refuses to work [Subjective belief] ○ The worker reports the refusal ○ The employer (supervisor) investigates (A Stage One investigation) ○ Either the worker goes back to work or the Ministry is called ○ The worker now must have reasonable grounds to believe there is a danger [Objective belief] ○ The inspector investigates (A Stage Two investigation) ○ The inspector decides whether the job is safe or unsafe ○ The employer responds or the worker goes back to work  ○ The inspector's decision may be appealed ○ No unfair discipline or reprisals may be taken by employer Non-application to certain workers ○ section does not apply to a worker described who is inherent in the worker's work or is a normal condition of the worker's employment or their absence directly endangers the life or health and safety of another Those who dont apply Police Firefighter Prison and juvenile guards Anyone in health care sector (doctor, nurse, rehab, even mans that do laundry for them) Refusal to work ○ A worker may refuse to work or do particular work where they believe any equipment, machine, device or thing the worker is to use or operate is likely to endanger themself or another worker the physical condition of the workplace is dangerous workplace violence the exercise of physical force by a person against a worker that causes or could cause physical injury to the worker an attempt to exercise physical force against a worker that causes or could cause physical injury to the worker a statement or behaviour that it is reasonable for a worker to interpret as a threat any equipment, machine, device or thing is dangerous under the Acts of regulations ○ Report of refusal to work Worker must promptly report the circumstances of the refusal to the worker's employer or supervisor who must investigate the report in the presence of the worker without delay and in the presence of ethier a committee member who represents workers a health and safety representative a worker who because of knowledge, experience and training is selected by a trade union ○ Investigations Until investigation is over, the worker must be in a safe area and availble Following the investegation, the worker may refuse to work or do  the particular work and the employer, worker or a person on behalf of the employer or worker must cause an inspector to be notified when they believe that any equipment, machine, device or thing the worker is to use or operate is likely to endanger themself or another worker the physical condition of the workplace is dangerous workplace violence ○ the exercise of physical force by a person against a worker that causes or could cause physical injury to the worker ○ an attempt to exercise physical force against a worker that causes or could cause physical injury to the worker ○ a statement or behaviour that it is reasonable for a worker to interpret as a threat any equipment, machine, device or thing is dangerous under the Acts of regulations Inspector must investigate the refusal to work in consultation with the employer or a person inspector shall give his or her decision, in writing, as soon as is practicable Pending the investigation and decision of the inspector, the worker shall remain, during the worker’s normal working hours, in a safe place as close as possible to workstation Duty to advise other workers Pending the investigation and decision of the inspector, no worker shall be assigned to use or operate the equipment, machine, device or thing or to work in the workplace or in the part of the workplace being investigated unless, in the presence of H&S rep, committee or Person under trade union Entitlement to be paid Employer must pay regular or premium rate if worker deemed at work ○ The Employer's Duty to Avoid Reprisals No discipline, dismissal, etc. by employer No employer or person acting on behalf of an employer can ○ dismiss or threaten to dismiss a worker ○ discipline or suspend or threaten to discipline or  suspend a worker ○ impose any penalty upon a worker ○ intimidate or coerce a worker because the worker has acted in compliance with this Act or the regulations Referral by inspector Where the circumstances warrant, an inspector may refer a matter to the Board if the following conditions are met ○ worker has not had the matter dealt with by final and binding settlement by arbitration under a collective agreement or filed a complaint ○ worker consents to the referral Onus of proof An employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer The Right to Know: WHMIS ○ What is it? A nation-wide scheme, involving federal, provincial and territorial legislation, which sets out a system for providing information and education about hazardous materials to workers developed through negotiations between federal and provincial authorities, industry groups, and organized labour came into effect October 31, 1988 ○ 2015 Canada has aligned WHMIS with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) incorporates the following GHS elements Classification rules and hazard classes Hazard pictograms Supplier label requirements Format of safety data sheets Benefits Hazard classification criteria are more comprehensive which improves ability to indicate severity of hazards New hazard classes are included Physical hazard criteria are consistent with the Transport of Dangerous Goods (TDG regulations)  Standardized language (hazard and precautionary statements) Standardized SDS format and more comprehensive requirements ○ Purpose To fulfil the worker's Right to Know about hazards in the workplace. To enhance the ability of the IRS to identify and eliminate or control hazards in the workplace. To ensure consistency of hazard information systems across Canada. To ensure Canada’s hazard information systems are consistent with other countries ○ Doesn't a Right To Know Already Exist? An employer must provide information, instruction and supervision to a worker acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent A supervisor must advise a worker of the existence of any potential or actual danger Provisions aren’t specific enough ○ Elements of WHMIS The WHMIS Triad - All Canada Labels Safety Data Sheets (SDSs) Worker Instruction ○ Flow of info ○ Which Government has Jurisdiction over WHMIS? Federal  Provincial ○ WHMIS Sections of the OHSA Hazardous material identification and data sheets An employer ○ Must ensure that all hazardous materials present in the workplace are identified ○ Must obtain or prepare, as may be prescribed, a current safety data sheet for all hazardous materials present in the workplace ○ Must ensure that the identification and data safety sheets are available in English and such other languages Hazardous material not to be used employer shall ensure that a hazardous material is not used, handled or stored at a workplace Safety data sheets must be made available online or in writing at all times to Workers Committee or H&S representatives Medical office of health (MOH) Fire department Director Instruction and training an employer must ensure that a worker exposed or likely to be exposed to a hazardous material or to a hazardous physical agent receives, and that the worker participates in instructions and training Should be developed and implemented in coordination with H&S representatives or committee at least annually ○ WHMIS Classification Hazardous Materials WHMIS covers Physical (20 physical hazards)  Health (12 health hazards) Lecture 9: HPPA 1 Health Protection and Promotion Act (HPPA): amended for the Chief Medical Officer of Health’s powers about personal information and personal health information also amended to specify when class orders are deemed to be made under section 106 Ministry of Health Appeal and Review Boards Act ○ amended by repealing the short title and substituting the Ministry of Health and Long-Term Care Appeal and Review Boards Act  Purpose of HPPA ○ to provide for the organization and delivery of public health programs and services ○ Prevent the spread of diseases ○ Protect the health of Ontario citizens ○ “Looks at the whole” rather than a singular person Jurisdiction ○ Both federal and provincial Food safety, water quality, quarantine, etc ○ Paramountcy doctrine if both levels pass laws that conflict, the federal takes priority Administrative Jurisdiction ○ Ministry of Health and Long-Term Care (MOHLTC) is responsible for the HPPA ○ Ministry of Labour (MOL) is responsible for OHSA ○ Ministry of Environment and Climate Change (MOE) responsible for EPA, OWRA PH general rule ○ HPPA public place and/or portion of the public ○ MOL Overlaps with workers ○ MOE Overlaps with hazards outside of built structures Peculiarity ○ OHSA Inspectors are employees of MOL ○ EPA Inspectors are employees of MOE ○ PHI’s, Local Medical Officer of Health (MOH) and PHN’s are employees of the local board of health Chief Medical Officer of Health and PH officials in northern Ontario are employees of MOHLTC Boards of Health (BOH) ○ Southern Ontario is geographically divided in local health units, each with a board of health ○ Jurisdiction over health hazards in health unit, not outside, unless emergency ○ Boards of health get guidance from the MOHLTC regarding health programs Who sits on the boards of health  Municipal members MOHLTC appointed members local band council members for native reserves ○ all must deliver the mandatory health programs required by the MOHLTC Definitions ○ Board the Health Services Appeal and Review Board under the Ministry of Health Appeal and Review Boards Act ○ board of health a board of health established or continued under HPPA regional municipalities ○ Durham, Halton, Niagara, Peel, Waterloo and York single-tier municipality ○ has the powers, rights and duties of a local board of health or a board of health an agency, board or organization from legislation ○ Chief Medical Officer of Health This under HPPA ○ communicable disease a disease specified as a communicable disease by regulation made by the Minister ○ disease of public health significance a disease designated as a disease of public health significance ○ dwelling unit real property used or designed for use as a home or as a place in which one or more persons may sleep ○ Food food or drink for human consumption, and includes an ingredient of food or drink ○ food premise where food or milk is manufactured, processed, prepared, stored, handled, displayed, distributed, transported, sold or offered for sale doesn’t include rooms used as a dwelling unit in a private residence ○ Health hazard a condition of a premise Orders can be upheld that apply solely to “safety” and not “health” (Health is broad)  substance, thing, plant or animal other than man A homeless person, student or patient with the disease is not a “health hazard”, but Chemicals, conditions, objects, microorganisms, and rabid dogs are solid, liquid, gas or combination Can be forms of energy ○ Most Orders are contingent on there being a health hazard ○ The definition has many subtitles ○ no general duty clause ○ “Likely” = greater than 50% chance? One case says “yes” ○ Health unit an area that, by or under any Act, is the area of jurisdiction of a BOH ○ Mandatory a health program or service mentioned in section 5 ○ medical officer of health Is in BOH ○ Milk milk from cows, goats or sheep ○ Minister and Ministry Minister of Health and Long-Term Care ○ municipal member a person appointed to the board of health by the council of a municipality ○ obligated municipality any upper-tier municipality or single-tier municipality that is situated, in whole or in part, in the area that comprises the health unit ○ Occupier a person who is in physical possession of premises a person who has responsibility for and control over the condition and people allowed on the premises or the activities a person for the time being receiving the rent of premises, whether as principal or as agent or trustee for another person, or who would so receive the rent if the premises were let, or who is responsible for the payment of municipal taxes ○ Operator a person who has responsibility for and control over an activity carried on at the food premise or the small drinking water system  although there is more than one operator of the same food premise or small drinking water system ○ Person includes a board of health, a municipality and any other corporation ○ personal service setting a premises at which personal services are offered where there is a risk of exposure to blood or body fluids Hairdressing, barbering, tattooing, body piercing, nail services, electrolysis and other aesthetic services ○ Physician a legally qualified medical practitioner ○ Premises lands and structures, or either of them which includes water ships and vessels trailers and portable structures designed or used for residence, business or shelter trains, railway cars, vehicles and aircraft provincial laws can apply within federal enclaves, as long as the federal activity is not jeopardized ○ public health inspector A part of BOH ○ public health nurse A part of BOH ○ public health standard a standard published by the Minister under section 7 ○ public pool a structure, basin, chamber or tank containing or intended to contain an artificial body of water for swimming, water sport, water recreation or entertainment Unless it is on a private residential property or commercial display ○ reportable disease a disease specified as a reportable disease by regulation made by the Minister ○ residential building a structure that contains one or more dwelling units ○ sanitary facilities a room or rooms containing one or more toilets and one or more  sinks ○ School Private or public ○ School board In education Act ○ sexually transmitted disease a disease caused by an infectious agent usually transmitted during sexual contact ○ small drinking water system a small drinking water system as specified by regulation ○ Virulent disease a disease designated as a virulent disease by regulation made by the Minister Cholera Diphtheria Gonorrhoea Hemorrhagic fever Leprosy Plague Smallpox/monkeypox Syphilis Tuberculosis Closing of premises ○ requires the closing of the premises to prevent entrance or access to the premises by any person to suspend the operation of any enterprise or activity on or in the premises except by such persons or for such purposes as are specified in the order Health programs and services: