COHS 208 Exam 7-12 PDF

**Module 7\ \ Introduction:** In this module, we'll cover the worker's right to participate in workplace health and safety, a right included in Canadian health and safety laws. In large workplaces, this right often means serving on a health and safety committee, which helps improve safety practices...

**Module 7\ \ Introduction:** In this module, we'll cover the worker's right to participate in workplace health and safety, a right included in Canadian health and safety laws. In large workplaces, this right often means serving on a health and safety committee, which helps improve safety practices. While it's ideal for all workplace parties to actively engage in safety programs, the committee acts as a check on the employer's responsibilities if that doesn't happen. In smaller workplaces, a single worker representative often oversees safety. Different regions in Canada may vary in the specific roles and responsibilities of committees and representatives. **The Health and Safety Representative in Ontario: Section 8 of the OHSA** In Ontario, the Occupational Health and Safety Act (OHSA) defines the *worker health and safety representative* (rep) role for workplaces with 5--19 employees, as detailed in section 8. The rep is essential in workplaces where a joint health and safety committee is not required, and workers (or a union, if present) select the rep, ensuring independence from employer influence. The rep's core duty, according to section 8(6), is to inspect the workplace monthly for hazards. In larger spaces, the inspection can be divided across months, covering the entire area yearly, with the schedule approved by both the rep and employer (sections 8(7)--(8)). Section 8(10) grants the rep authority to spot potential dangers, make recommendations, and require a written employer response within 21 days, either addressing solutions or explaining disagreements. The rep also has access to information on hazards, industry safety standards, and the right to attend any workplace testing. In the event of a critical injury or fatality, the rep may inspect the accident site, with findings reported to the Ministry of Labour, Training and Skills Development (MLTSD). All duties performed by the rep are considered paid time, ensuring dedicated support for workplace safety. **The Joint Health and Safety Committee in Ontario: Section 9 of the OHSA** In larger workplaces, a health and safety representative (rep) alone may not be sufficient to ensure worker safety. Section 9 of the Occupational Health and Safety Act (OHSA) establishes the framework for the *joint health and safety committee* (JHSC), including its composition, training, functions, and powers. [Composition and Training]\ JHSCs are required in workplaces with 20 or more regularly employed workers, although some projects lasting fewer than three months may be exempt. The committee is structured to include both worker and management representatives, with at least 50% of the members being non-managerial workers. The committee can have a minimum of two members, increasing to at least four when the workforce reaches 50. Importantly, section 9(12) mandates that at least one worker and one management member must undergo certification training in health and safety. This training involves a two-part program that covers legislation, hazard recognition, and workplace-specific hazards. [Functions and Powers]\ Section 9(18) outlines the JHSC\'s functions, mirroring those of the health and safety rep. The committee identifies hazards, makes written recommendations, and can request information from the employer. Employers must respond to recommendations within 21 days. Recent amendments have eliminated the need for consensus in decision-making; if a consensus cannot be reached, either co-chair can submit a recommendation. **Legal Requirements for Health and Safety Representatives and Joint Health and Safety Committees in Ontario** The Occupational Health and Safety Act (OHSA) in Ontario sets specific legal requirements regarding health and safety representatives (H&S reps) and joint health and safety committees (JHSCs) based on the number of employees in a workplace. These requirements aim to ensure adequate safety oversight tailored to the size of the workforce. **Number of Workers** **Legal Requirement** ----------------------- -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- **1--5** There is no legal requirement for a JHSC or H&S representative unless specifically ordered by the Minister of Labour. However, if the workplace contains a designated substance---substances that pose significant health risks and are heavily regulated---a JHSC is mandatory to oversee safety related to these hazards. This ensures that even smaller workplaces with potentially dangerous materials have a mechanism in place for managing safety risks. **6--19** Workplaces with 6 to 19 employees are required to designate one worker as the health and safety representative. This individual is tasked with monitoring workplace safety and acting as a liaison between workers and management regarding health and safety issues. If the workplace includes designated substances, a JHSC must also be established to address the specific hazards these substances pose. This requirement emphasizes the importance of having safety oversight even in relatively small workplaces. **20--49** For workplaces with 20 to 49 workers, a JHSC becomes necessary, consisting of a minimum of two members. At least 50% of these members must be workers who do not perform managerial functions, ensuring that worker perspectives are adequately represented. Additionally, both a worker representative and a management representative must be certified in health and safety training. This certification equips them with the knowledge and skills needed to effectively manage and mitigate workplace hazards, promoting a safer work environment. **50+** In larger workplaces with 50 or more employees, the law mandates a JHSC with at least four members. Similar to the smaller group, at least 50% of these members must be non-managerial workers. Importantly, both a worker and a management representative must hold certification in health and safety. The increased committee size in larger workplaces reflects the complexity of safety issues and the greater need for diverse input and expertise in managing workplace safety. ### **The Trades Committee (Ontario) and Related Sections Simplified** **Overview of the Trades Committee\ **Construction projects are distinct from traditional workplaces, as they involve different trades that come and go throughout the project\'s duration. For larger projects with 50 or more workers, a safety committee known as the Worker Trades Committee is required to oversee health and safety. This committee is set up under Section 10 of the Occupational Health and Safety Act (OHSA). If a project lasts less than three months or has fewer than 50 workers, a committee is not necessary. Members of the trades or their union select the committee members, whose main role is to inform workers about health and safety concerns. Time spent on committee activities is paid, with a maximum time limit established by the committee. **Employer Obligations\ **Section 11 of the Act reiterates the employer's responsibility to consult with the health and safety representative or committee during workplace testing and to provide necessary information. This requirement aligns with Sections 8 and 9 of the Act. **Access to Health and Safety Data\ **Section 12 allows any workplace party to request an annual summary of health and safety data from the Workplace Safety and Insurance Board (WSIB). Employers must post this information publicly, creating a system of checks and balances to ensure the accuracy of the information shared with the committee. **Regulations Impacting Committees\ **Two key regulations affect health and safety committees: 1. 2. **Working at Heights Training\ **Regulation 213/13 includes specific sections (6-10) about Working at Heights training for construction projects, requiring approved programs and regular updates every three years. **Volunteer Workers\ **Regulation 385/96 distinguishes between regular workers and volunteer workers to prevent misrepresentation of workforce numbers. This ensures that volunteers are acknowledged for their contributions without inflating the official worker count. This summary highlights the structure and regulations governing health and safety in construction projects in Ontario, emphasizing the importance of safety committees and training. ### **The CLC II Policy Committee Simplified** **Overview of the CLC II Policy Committee\ **In Canada, workplaces under federal jurisdiction have a different structure for health and safety committees compared to provincial workplaces. According to Section 134.1 of the Canada Labour Code, Part II (CLC II), employers with **300 or more employees** must have a policy health and safety committee, while those with **20 to 299 employees** can choose to establish one if agreed upon by the workers or their union. **Understanding the Structure** - - - - - - **Purpose of the Policy Committee\ **The policy committee is responsible for developing health and safety policies and programs, which include: - - - - **Key Points** - - ### **The CLC II Health and Safety Committee** **Overview of Workplace Health and Safety Committees\ **Section 135 of the CLC II outlines the requirements for workplace health and safety committees. These committees are necessary in workplaces with **20 or more employees**, but employees working on ships (who are based on the ship) are exempt from this requirement. **Exemptions** - - **Committee Responsibilities\ **The workplace health and safety committee must: - - - - ### **Common Provisions for Both Committees** **Membership and Structure\ **Section 135.1 outlines common provisions for both policy and workplace committees: - - - - **Legal Protections and Regulations** - - - ### **CLC II Health and Safety Representative** **For Smaller Workplaces\ **In workplaces with fewer than **20 employees**, there is no requirement for a formal committee. Instead, a health and safety representative must be selected by employees or their union. **Duties of the Representative** - - - - ### **Summary** This summary highlights the key aspects of the Canada Labour Code\'s regulations on health and safety committees for federally regulated workplaces. It emphasizes the differences in structure, responsibilities, and regulations compared to Ontario's approach, including the roles of policy committees, workplace committees, and health and safety representatives. ### **CLC II Policy Committee** - - - - - - - - - - - - ### **CLC II Health and Safety Committee** - - - - - - ### **Provisions Common to Both Committees** - - - - - ### **CLC II Health and Safety Representative** - - - ### **CLC II Complaint Resolution Process** - - - - - ### **Health and Safety Committees in Other Canadian Jurisdictions** 1. - - 2. - - 3. - - **Module 8** ### **Overview of the Right to Refuse Unsafe Work** This module covers a key right that all workers have: the right to refuse unsafe work. Ideally, workplaces with a strong Internal Responsibility System (IRS) should resolve safety issues before a worker feels the need to use this right. However, most jurisdictions include this right in their laws, with each handling it slightly differently. We\'ll focus on how Ontario law addresses this, especially the role of worker representatives in resolving work refusals and the specific processes for \"work stoppages.\" ### **Work Refusals in Ontario** In Ontario, the Occupational Health and Safety Act (OHSA) outlines the right to refuse unsafe work in section 43. Generally, workplaces should handle safety issues through discussions and collaboration, but when this doesn't happen, work refusals may occur. Key points: - - - ### **Reasons for Refusing Unsafe Work** There are three main grounds for refusing work: 1. 2. 3. The refusal can be based on any of these reasons alone. ### **Work Refusal Process** When a worker believes work is unsafe, they should: 1. 2. 3. This initial report and investigation is known as \"Stage One\" of the refusal process. At this stage, the worker is fulfilling their duty to report unsafe work without fully refusing to work. If the supervisor agrees there's a hazard, they may assign the worker a different task until the issue is fixed. ### **Ontario Work Refusals -- Stage Two** After a supervisor investigates a work refusal, there are a few possible outcomes: 1. 2. #### **Stage Two Work Refusal Process** - - During the inspector\'s investigation, the worker remains nearby in a safe place (with paid waiting time) and may be offered alternate tasks or sent home if no work is available. #### **Offering Refused Work to Others** Until the inspector makes a decision, no one else should be assigned the refused work unless they are informed about the refusal and the safety concerns. A worker member of the joint health and safety committee should be present to ensure transparency. This allows another worker to accept the task if they feel it's safe, such as if the original worker's refusal was due to personal concerns rather than general safety risks. #### **Avoiding Reprisals** Employers must not retaliate against workers who refuse unsafe work, as reprisals are illegal under Section 50 of the **Occupational Health and Safety Act (OHSA)**. Reprisals include actions like firing, discipline, penalties, or intimidation, even if unintentional. The **Ontario Labour Relations Board (OLRB)** handles reprisal claims, and employers must prove they didn't violate Section 50 (this is called \"reverse onus\"). For unionized employees, such cases might go to arbitration under their collective agreement. #### **Support from Worker and Employer Advisers** Ontario\'s Occupational Health and Safety Act allows the **Office of the Worker Adviser** to help non-unionized workers and the **Office of the Employer Adviser** to assist small businesses (with fewer than 100 employees) in handling refusals and reprisal issues. ### **Key Takeaways** The right to refuse work protects workers from unsafe conditions, and the law provides structured steps to investigate and resolve refusals. Ontario's system aims to balance worker safety with the need to minimize work disruptions, ideally without workers needing to invoke their right to refuse if a strong IRS is in place. **WORK REFUSALS - FEDERAL** This overview contrasts Ontario's work refusal process with that in the federal jurisdiction, as covered under the Canada Labour Code (CLC) Part II, specifically sections 128 and 129. Here are the key points: 1. - - 2. - - 3. - - 4. - - 5. - **Case Related to Work Refusals:**\ \ Here's a summary of the cases related to work refusals adjudicated by the Ontario Labour Relations Board (OLRB), as outlined in the Occupational Health and Safety Law study guide. Each case highlights various aspects of worker rights, employer responsibilities, and the implications of safety regulations. ### **1. Bob Nault v. Inco Metals (1984)** **Key Points:** - - - ### **2. John O'Neill v. David Williams et al. (1986)** **Key Points:** - - - ### **3. Ralph Marion et al. v. Commonwealth Construction Co. (1987)** **Key Points:** - - - ### **4. Gerald P. Blaine v. Bill's Country Meats Ltd. (1984)** **Key Points:** - - - ### **5. Wilfred George Love and Toronto Transit Commission (1985)** **Key Points:** - - - ### **6. Kevin Lunn v. Firestone Canada Inc. (1985)** **Key Points:** - - - ### **7. United Steel Workers of America, Local 6500 v. Ministry of Labour and Inco Limited (1990)** **Key Points:** - - - ### **Conclusion** These cases emphasize the importance of employee rights to refuse unsafe work under the OHSA and the consequences of employer reprisals. They illustrate the nuances in the definitions of \"worker\" and \"supervisor\" within the context of occupational health and safety, and underscore the need for clear communication and adherence to safety protocols in the workplace. ### **Work Stoppages in Ontario** In our discussion of work interruptions, we conclude by examining the work stoppage process, unique to Ontario in Canada, as established in the Occupational Health and Safety Act (OSH Act). Section 45 of the OSH Act empowers certain workers, primarily certified members of joint health and safety committees, to require that work be stopped when "dangerous circumstances" are identified. **Defining Dangerous Circumstances\ **A "dangerous circumstance" is outlined in section 44 as a situation where: 1. 2. 3. It is crucial for certified committee members to understand that all three conditions must be met to qualify a situation as a "dangerous circumstance," a concept typically covered in their initial certification training. **Limitations on Work Stoppages\ **As with the right to refuse unsafe work, there are limitations on the application of the right to stop work, as identified in section 44(2) of the Act. ### **Types of Work Stoppages** **Bilateral Work Stoppage\ **The most prevalent form of work stoppage is the bilateral work stoppage, though such occurrences are still relatively uncommon. According to section 48, a certified member of a joint health and safety committee who receives a complaint about dangerous circumstances is entitled to investigate the complaint, with the investigation time counted as work time. The process is as follows: 1. 2. 3. 4. This collaborative approach is termed a \"bilateral work stoppage\" because it involves both the worker and management representatives. **Unilateral Work Stoppage\ **In certain situations, a certified member or inspector may conclude that the bilateral work stoppage process is insufficient to protect worker health and safety. In these cases, they can apply to the Ontario Labour Relations Board for a declaration on unilateral work stoppages or for the appointment of an inspector to oversee the employer\'s health and safety practices for a specified duration. This action requires the Board to determine that the employer has failed to safeguard worker health and safety. A unilateral work stoppage occurs when a single certified member determines dangerous circumstances exist and orders the employer to stop work. Following the stoppage, an investigation will take place between the certified member and the employer. If they disagree on the existence of dangerous circumstances, either party may call an inspector to conduct an investigation, resulting in a written decision. The inspector can revoke any direction once remedial actions, if necessary, have been taken. Module 9:\ \ **Introduction** In this module, we explore the \"right to know,\" a fundamental right in Canadian health and safety legislation that ensures workers are informed about workplace hazards. This right is balanced by the employer\'s \"duty to tell,\" ensuring that employees have access to essential information for their safety. This duty is outlined broadly in some sections of the Ontario Occupational Health and Safety Act (OHSA), while others specify particular requirements. One of the key programs under this right is the **Workplace Hazardous Materials Information System (WHMIS)**. WHMIS focuses on information transfer, allowing workers to understand and manage risks associated with hazardous materials. This system is crucial for worker safety, ensuring access to comprehensive information on hazardous chemicals and biological agents. The right to know goes beyond just receiving information; it encompasses worker education and training to ensure knowledge is applicable and actionable in their specific workplace environments. ### **Legislative Background on Hazardous Materials** Historically, Ontario has approached chemical safety through regulations like the **Designated Substance Regulations** (DSR), which initially regulated individual hazardous substances such as mercury and asbestos. Over time, the **Exposure Control Regulation** expanded this approach by setting exposure limits for a broader range of chemicals. These regulations were periodically updated to align with current standards, such as those from the **American Conference of Governmental Industrial Hygienists (ACGIH)**, to address the evolving understanding of chemical hazards. In this module, we will review WHMIS alongside other provincial regulations like **Regulation 833** and the lesser-known sections of the OHSA to gain a comprehensive view of the right to know, the duty to tell, and the mechanisms in place to protect workers from hazardous substances. ### **WHMIS and GHS: An Overview of Key Components and Federal Legislation** The **Workplace Hazardous Materials Information System (WHMIS)** is a comprehensive, nationwide program that has served Canadian workers for nearly 30 years, ensuring they have access to essential information about hazardous materials in their workplaces. Established at the federal level in 1988, WHMIS operates with provincial, territorial, and federal components, creating a cohesive and relatively standardized system across Canada. Its development reflects Canada's commitment to safeguarding workers through a shared responsibility model aligned with the Internal Responsibility System (IRS). #### **Scope of WHMIS** While WHMIS is often associated with chemical hazards, it covers a broader range of hazardous materials, including biological agents. This means it applies not only to chemicals but also to infectious agents, as well as materials derived from formerly living sources, like wood or animal products, which can pose risks in various industries. WHMIS\'s implementation ensures that workers are not only informed about hazards but also trained to handle them safely, an approach that highlights the program's dual focus on **education and training**. #### **Global Harmonized System (GHS)** Over time, the global nature of trade exposed limitations in WHMIS, as imported products often arrived with labels or data sheets following different safety standards, creating potential risks for Canadian workers. In response, Canada adopted the **Globally Harmonized System (GHS)**, transitioning from WHMIS 1988 to **WHMIS 2015**. GHS standardizes hazard classification and labelling across countries, making international product handling safer and more consistent. The shift to WHMIS 2015 began in 2015, with a final transition deadline of December 1, 2018. Post-transition, Canadian workplaces exclusively use GHS-compliant labels and Safety Data Sheets (SDS), replacing the older WHMIS labels and Material Safety Data Sheets (MSDS). However, Canada\'s version of GHS retains specific elements, such as the **biohazard symbol**, which GHS does not include. #### **Federal Legislation Supporting WHMIS and GHS** Three main pieces of federal legislation establish and regulate WHMIS, ensuring national compliance and safety standards: 1. - - 2. - 3. - The Workplace Hazardous Materials Information System (WHMIS) is critical in ensuring the safety and health of workers across Canada, with distinct federal and provincial legislation guiding implementation in different workplaces. ### **Federal WHMIS Legislation (SOR/86-304, Part X, Division III)** Federally regulated workplaces, overseen by the Canada Labour Code, must follow SOR/86-304 regulations. Part X specifically addresses hazardous substances, aligning with the Hazardous Products Act. Key points include: 1. 2. 3. 4. 5. The Canada Labour Code sections with a decimal, like 125.1, indicate these were added later to include WHMIS standards established in the late 1980s. ### **Ontario WHMIS Legislation** WHMIS in Ontario is governed by amendments to the Occupational Health and Safety Act (OHSA), primarily sections 37 to 42, and further detailed in Regulation 860/90. 1. - - - 2. - - - - ### **WHMIS Responsibilities by Workplace Parties** In both federal and Ontario contexts, WHMIS requirements impact multiple workplace parties: - - - - - This layered system creates a collaborative approach to managing workplace hazardous materials, ensuring comprehensive protection for employees across jurisdictions. The federal and Ontario Workplace Hazardous Materials Information System (WHMIS) regulations outline comprehensive guidelines for managing hazardous materials in workplaces, including labeling, safety data sheets (SDSs), and training. Here\'s a summary of the main points from both federal and Ontario perspectives. ### **Federal WHMIS Legislation** Under the **Canada Labour Code** (SOR/86-304), Part X, Division III covers hazardous substances per the **Hazardous Products Act**. This requires federally regulated workplaces to: 1. 2. 3. **Employer Duties** under the federal WHMIS requirements are listed under **section 125.1** of the Canada Labour Code. Employers must ensure proper storage, labeling, and training for hazardous materials. ### **Ontario WHMIS Legislation** In Ontario, **WHMIS** was incorporated into the **Occupational Health and Safety Act (OHSA)** through Bill 79 in 1987, primarily in sections **37 to 42**. Ontario's **Regulation 860** provides the specific details of the WHMIS requirements. 1. 2. 3. Ontario's WHMIS regulations are not identical to federal requirements. Unique Ontario additions include assessments of hazardous materials and a \"community right to know.\" ### ### **Enforcement** Federal fines for WHMIS non-compliance by suppliers or importers can reach **\$1 million**. Under Ontario\'s OHSA, **individual fines** can go up to **\$100,000** or **one year in jail**, while **corporations can face fines up to \$1.5 million**. Compliance or demonstrating **due diligence** (through proper labeling, training, and worker instruction) is the main defense against violations. ### **WHMIS Hazard Classes** WHMIS classifies hazardous products into **physical hazards** (e.g., flammable gases, corrosive to metals) and **health hazards** (e.g., acute toxicity, carcinogenicity). Suppliers must classify products and provide appropriate labels and SDSs for those that meet hazard criteria. Excluded items under WHMIS include **consumer products, cosmetics, food, pesticides**, and **tobacco**. ### **WHMIS Labels** WHMIS uses **supplier labels** and **workplace labels**. Supplier labels include product identifiers, pictograms, signal words, hazard statements, and precautionary statements. Workplace labels, used when products are transferred or supplier labels are damaged, require: 1. 2. 3. ### **Key Roles of Workplace Parties** 1. 2. 3. 4. 5. By adhering to both federal and Ontario WHMIS regulations, workplaces can maintain a safe environment and avoid legal consequences, emphasizing the critical role of compliance and due diligence. ### **Key Components of WHMIS and SDS** 1. 2. - - - - - - ### **Non-WHMIS Labeling Systems in Canada** Canadian workplaces encounter various labeling systems beyond WHMIS: - - - - Other systems apply to **food additives, drugs, cosmetics, and explosives**. Each category has specific labeling and safety requirements under different Canadian legislation. ### **WHMIS-Specific Provincial Requirements (Nova Scotia and Ontario)** WHMIS-related laws vary slightly by province: - - These insights reveal that WHMIS is integral to workplace safety in Canada, providing structured, accessible hazard information. Each province's supplementary laws reflect local requirements, showing how federal and provincial regulations work together to protect Canadian workers. **Module 10:**\ \ **What Are IRS and ERS?** - - - - - #### **How IRS and ERS Work Together** - - - - - - #### **What Happens When IRS Fails?** - - Both systems work together to maintain workplace safety, with IRS taking the lead and ERS stepping in when needed. #### **Key Roles of ERS Inspectors** - - - - #### **Examples of Inspector Powers by Province/Territory** **Jurisdiction** **OHS Legislation** **Powers of Inspectors** --------------------------------- -------------------------------------------------- -------------------------- Alberta Occupational Health and Safety Act Section 8 British Columbia Workers Compensation Act Sections 178--194 Manitoba The Workplace Safety and Health Act Section 24 New Brunswick Occupational Health and Safety Act Section 28 Newfoundland and Labrador Occupational Health and Safety Act Section 26 Northwest Territories & Nunavut Safety Act Section 9 Nova Scotia Occupational Health and Safety Act Sections 47--48 Ontario Occupational Health and Safety Act Sections 54--57 Prince Edward Island Occupational Health and Safety Act Section 7 Quebec An Act Respecting Occupational Health and Safety Sections 180--193 Saskatchewan The Occupational Health and Safety Act Section 72 Yukon Occupational Health and Safety Act Section 33 Federal Canada Labour Code II Section 141 #### **Legal Challenges and Case Law** - - ### **Key Takeaway** - - **MODULE 11:\ \ Lawsuits** \* Lawsuits are causes of legal action between private individuals or parties. \* They are civil in nature and arise from private personal wrongs, such as breach of contract, torts, or private nuisance. \* Examples of lawsuits include: - - \* The outcome of a lawsuit is usually damages or an injunction of specific performance, but not imprisonment. **Key Points** \* An agreement or contract does not have to be in writing; it can be verbal, written, or implied. \* Lawsuits can involve government agencies or ministries as parties, but they act as private bodies in these cases. \* Examples of government agencies as parties to lawsuits include: - **Differences between Lawsuits and Prosecutions** \* Lawsuits are civil actions between private parties, while prosecutions are criminal actions brought by the state against an individual. \* The article will discuss prosecutions and deterrence in a later section. **Prosecutions:** \- Prosecutions are public and brought by the government or a government agency against an offender(s), with the outcome being fines, imprisonment, or both. \- In a prosecution, the burden of proof is on the prosecutor or Crown to prove all elements of the offence(s) charged beyond a reasonable doubt. \- In a lawsuit, the burden of proof is on the claimant or plaintiff to adduce evidence in support of their claim(s), with the standard of proof being a preponderance of the evidence (51%). **OHS prosecutions:** \- OHS prosecutions refer to prosecutions under provincial OHS laws, Canada Labour Code, Part II, and their regulations. \- OHS prosecutions are a last resort to ensure a safe workplace, used when inspections, orders, and directions fail to achieve the desired outcome. \- The objectives of OHS prosecutions include improving workplace health and safety culture, reducing workplace injuries and illnesses, and providing a level playing field for compliant companies. **Deterrence:** \- The primary objective of OHS prosecution and conviction is deterrence. \- There are two types of deterrence: specific deterrence (punishing the violator to prevent future violations) and general deterrence (punishing the violator to send a message to the public). \- The goal of deterrence is to send a message that violating OHS laws will not be tolerated and may lead to fatalities, serious injuries, or illnesses to workers. **Difference between OHS and Bill C-45** \- OHS law is quasi-criminal, meaning it carries punishments similar to criminal law, but is regulatory in nature. \- Quasi-criminal prosecutions require the defendant to be accorded due process protections afforded to criminal defendants. \- The Supreme Court of Canada recognized three types of offences: pure crimes, strict liability offences, and absolute liability offences. \- Bill C-45 amended the Criminal Code of Canada, adding sections 217.1, 22.1, and 22.2, which impose duties on individuals and organizations to prevent bodily harm. \- Section 217.1 of the Criminal Code imposes a duty on individuals who direct work or tasks to take reasonable steps to prevent bodily harm. \- Section 22.1 and 22.2 of the Criminal Code impose duties on organizations to prevent bodily harm, and an organization can be charged with criminal negligence if a senior officer departs from the standard of care. \- Bill C-45 prosecutions are purely criminal, requiring the defendant to be accorded constitutional protections such as the right to representation and a fair trial. **Prosecutions Statistics:** \- Prosecutions can be laid for violations of the Occupational Health and Safety Act and its regulations. \- Charges can be laid against workplace parties, including employers, supervisors, and workers. \- If convicted, an offender may be fined by the court. \- The table below shows the number of convictions and total amount of fines for all areas (construction, industrial, and mining) by year. \- The data is sourced from the MLTSD Website, accessed December 2020. **Prosecutions and OHS Laws:** \- The Canada Labour Code, Part II and provincial OHS Acts have provisions for prosecutions. \- Every person who contravenes a provision of the Code is guilty of an offence and liable to a fine or imprisonment. \- The Code distinguishes between \"summary conviction\" and \"conviction on indictment\" offences, with different penalties and trial procedures. \- A summary conviction offence is punishable by a maximum penalty of a six-month prison sentence, a \$5,000 fine or both, and is tried by a judge alone without a jury trial. \- An indictable offence is more serious and punishable by a higher fine and/or longer prison sentence, with the option of a jury trial and a preliminary hearing. \- The Code provides for a two-year statute of limitation for starting or initiating a proceeding for offences. \- The Minister\'s consent is required to institute a proceeding for an offence under the Code. \- A corporation or department that commits an offence under the Code is liable, and any officer, director, agent, or mandatary who directed, authorized, or participated in the commission of the offence is also liable. \- A copy of a direction purporting to have been made under the Code is evidence of the direction without proof of the signature or authority of the person by whom it purports to be signed. **Provincial OHS Acts** \- In Ontario, any person who contravenes or fails to comply with the OHS Act or regulations is guilty of an offence and can be fined up to \$100,000 or imprisoned for up to 12 months, or both. \- If a corporation is convicted of an offence, the maximum fine is \$1,500,000. \- In Ontario, it is a defence for the accused to prove that every precaution reasonable in the circumstances was taken. \- In a prosecution of an offence, any act or neglect on the part of a manager, agent, representative, officer, director, or supervisor of the accused is considered the act or neglect of the accused. \- In Ontario, certified copies of documents, orders, and decisions are evidence of the facts appearing in the documents without proof of signature or official character. \- In Ontario, a copy of an order or decision can be served personally or by registered letter to a person or corporation mentioned in the order or decision. \- In Ontario, an information in respect of an offence under the Act may be heard, tried, and determined by the Ontario Court of Justice sitting in the county or district where the accused resides or carries on business. **OHS Laws and Defences to Prosecutions:** \- Legal defences are arguments presented by a defendant to overcome charges of violating the Occupational Health and Safety (OHS) Act or regulations. \- Available defences against OHS regulatory offences include due diligence, mistake of fact, mistake of law, and officially induced error. \- OHS laws are strict liability offences, which can be mitigated by a defence of due diligence. \- The due diligence defence is grounded in common law and is enshrined in OHS Acts across Canada, including federal, Saskatchewan, and Ontario legislation. \- The defence provisions of OHS legislation vary by jurisdiction, with the federal legislation providing for the defence of \"due care\" and \"due diligence\", Saskatchewan\'s Act having an \"evidence\" provision, and Ontario\'s Act using the phrase \"every precaution reasonable in the circumstances\". \- Once an OHS violation or offence is charged, the onus shifts to the defendant to show that they did what a reasonable person would do under the circumstances. **Case Law Review of OHS and Bill C-45 Prosecutions:** \- The article reviews convictions under the Occupational Health and Safety (OHS) Act and advises readers to familiarize themselves with their jurisdiction\'s OHS government website and recent cases on CanLII. \- Bill C-45 amended the Criminal Code, allowing for simultaneous prosecution under OHS Acts and the Criminal Code for workplace fatalities or serious injuries. \- The article discusses other sections of the Criminal Code, such as section 219, that support prosecution for fatality or serious injuries arising from negligence. \- Workplace fatalities or serious injuries in Canada may be prosecuted under the OHS Act, Canada Labour Code, Part II, and the Criminal Code (sections 217.1, 219, 220, and 221). \- Section 217.1 of the Criminal Code imposes a duty on those who direct work to take reasonable steps to prevent bodily harm. \- Section 219 of the Criminal Code defines criminal negligence as showing wanton or reckless disregard for the lives or safety of others, and sections 220 and 221 provide penalties for causing death or bodily harm by criminal negligence. **Charges Under Bill C-45:** \- On February 11, 2010, Sault Ste Marie Police charged the owner of Millennium Crane Rentals and the crane operator with criminal negligence causing death after a municipal worker was killed in an excavation site. \- In July 2013, Millennium Crane Rental was fined \$70,000 for violating the Ontario Occupational Health and Safety Act. \- On December 24, 2009, four workers were killed and one was seriously injured at a Toronto construction site when the swing stage scaffolding they were on collapsed. \- Metron Construction and three corporate officers were charged with criminal negligence and fined \$200,000 plus a victim surcharge of \$30,000. \- In September 2013, the appeal court tripled the fine against Metron, raising it to \$750,000 for criminal negligence. \- On March 17, 2008, a paving company (Transpave) was charged with and convicted of criminal negligence and fined \$100,000 in the death of an employee. \- The article also mentions several other cases, including a train striking a maintenance vehicle, a landscape contractor being crushed to death, and a BC Ferries vessel sinking, resulting in charges and fines being laid under the Criminal Code and Occupational Health and Safety Acts. **Convictions under the OHS Acts:** [ONTARIO] \- Linamar Corporation was fined \$200,000 for a worker\'s burn injuries caused by a furnace door explosion at their Guelph, Ontario facility. The worker was not wearing protective equipment as required by law. \- Miska Trailer Factory was fined \$150,000 for a worker\'s electrocution caused by coming into contact with live powerlines at their Hamilton, Ontario facility. The worker was tasked with modifying flags attached to aluminum poles and did not take steps to prevent encroachment on the powerlines. \- Cyclone Manufacturing Incorporated was fined \$60,000 for a worker\'s injuries caused by a component being lifted by a sling striking the worker at their Mississauga, Ontario facility. The company failed to ensure the measures and procedures prescribed by section 45(a) of Ontario Regulation 851 were carried out in a workplace. \- North West Lumber Co. Ltd. (NWL) was fined \$55,000 for a worker\'s fall through a skylight while removing snow from a shed at their Chelmsford facility. The worker was not using safety equipment as required by law. \- All of the companies were convicted of failing to comply with the Occupational Health and Safety Act and were ordered to pay a 25% victim fine surcharge. \- The article provides background information on each of the incidents, including the circumstances leading up to the injuries and the subsequent investigations and convictions. **Defence of Due Diligence** \- The Supreme Court of Canada established that a due diligence defence is available for strict liability and regulatory offences, including OHS Act violations. \- The Canada Labour Code and Ontario OHS Act both provide for a due diligence defence, requiring the defendant to prove they took every precaution reasonable in the circumstances to avoid the contravention. \- Due diligence is an objective standard of what a reasonable person would do in a given situation, taking into account the circumstances and context. \- It is not a hindsight-based standard, but rather an assessment of what a person would reasonably do at the time of the alleged contravention. \- The defence of due diligence can be successful if the defendant can demonstrate that they had an effective OHS management system in place, including policies, risk assessments, training, and regular reviews. \- A company with a functional OHS management system and a commitment to OHS excellence is more likely to be successful in relying on the due diligence defence in the event of an incident. **MODULE 12:** \- The module focuses on subsidiary legislation that impacts OHS in the workplace. \- Subsidiary legislation includes federal and provincial laws that are not OHS legislation but affect OHS management. \- The module covers Ontario Acts as a model for provincial jurisdictions, with a focus on Employment Standards Act, Human Rights Code, Labour Relations Act, Coroners Act, and Smoke-Free Ontario Act. \- Relevant case law will be discussed to address key points. \- The module aims to help learners understand key elements of subsidiary legislation and its relation to OHS. **Subsidiary Legislation -- Provincial and Federal** \- The article discusses subsidiary legislation that affects OHS in the workplace, beyond primary OHS laws. \- Focus is on Ontario laws, but readers are encouraged to compare similar statutes from other jurisdictions. \- Subsidiary legislation can have significant impact on OHS, such as the Coroners Act, which investigates workplace fatalities and makes recommendations. \- OHS does not exist in a vacuum and is influenced by other laws, such as collective agreements and human resource-related functions. \- The article will cover five pieces of subsidiary legislation from Ontario and two from the federal jurisdiction. **Employment Standards Act:** \- The Employment Standards Act (ESA) applies to most non-unionized workers in Ontario. \- The ESA sets minimum standards for 9 areas, including minimum wage, statutory holidays, and overtime pay. \- The Act does not cover federally regulated employees, police officers, and others. \- The ESA is relevant to OHS as it can help prevent workplace hazards, such as fatigue, by setting limits on maximum hours of work per week. \- Other ways the ESA may be relevant to OHS include equal pay for work of equal value and dismissal notice period. **Ontario Human Rights Code:** \- The Ontario Human Rights Code aims to recognize the dignity and worth of every person, provide equal rights and opportunities, and create a climate of understanding and mutual respect. \- The Code protects self-worth and dignity, while the Occupational Health and Safety Act (OHS Act) protects the health and safety of people in the workplace. \- The Human Rights Code applies to everyone in Ontario except those working in federally regulated workplaces, whereas the OHS Act applies to all workplaces. \- The Code prohibits discrimination based on 17 grounds, including age, ancestry, citizenship, disability, and more. [Prohibited Grounds for discrimination: ] \- Section 11 of the Code allows for \"constructive discrimination\" claims, where a person is excluded or restricted due to a factor that is not a prohibited ground, but has a disproportionate impact on a group identified by a prohibited ground. \- The \"bona fide\" and section 17 exceptions apply to section 11. \- The Code aims to protect the dignity and worth of people in all aspects of daily life, including the workplace. [Other areas:] \- Section 9 of the Code prohibits infringement of the rights conferred on people, and Section 8 prohibits reprisal or threat of reprisal for exercising rights under the Code. \- The Code defines \"undue hardship\" as an exception to the general rule of accommodating people with disabilities, and determining undue hardship may be challenging. \- Section 47 of the Code states that it binds the Crown and every agency of the Crown, and in cases of conflict with other statutes, the Code prevails unless specifically provided otherwise. Case Studies:\ Here is a summary of the article in 6 list forms: \- The case Loomba v. Home Depot Canada (2010) HRTO 1432 involves a security guard who wears a turban as an article of his Sikh faith. \- The complainant, Mr. Loomba, alleged that the assistant store manager refused to allow him to work at the site for refusing to wear a hard hat, selectively enforced the hard hat rule, and subjected him to rude and offensive behavior because of his turban. \- The Tribunal found that Mr. Loomba\'s refusal to remove his turban engages the Code-protected ground of \"creed\" and that his relationship with the respondents comes within the concept of \"with respect to employment\". \- The Tribunal concluded that the respondents discriminated against Mr. Loomba by selectively enforcing the hard hat rule and subjected him to discriminatory treatment. \- The OHS Act and regulations provide for personal protective equipment to be provided by the employer and worn by employees who may be at risk of exposure to a hazard. \- The case highlights the importance of understanding the intent behind the Human Rights Code and the relevant provisions therein to facilitate the resolution of issues like this in the workplace. **Labour Relations Act** \- Facilitates collective bargaining between employers and trade unions \- Recognizes importance of workplace parties adapting to change \- Promotes flexibility, productivity, and employee involvement \- Encourages communication between employers and employees \- Recognizes importance of economic growth and co-operative participation **Labour Relations Act and OHS** \- Labour Relations Act has significant influence on OHS operations \- OHS professionals must balance dependent and conflicting interests \- Joint health and safety committee plays crucial role in keeping workplace safe and healthy \- Trade union selects employee members of committee \- Shop stewards may have dual roles in OHS issues \- Grievances may deal directly with OHS concerns \- Collective agreements contain OHS clauses \- Arbitrators hear lawful reprisals under OHS Act \- Seniority requirements affect OHS, especially safe return to work Here is a summarized list of the article in 7 points, without using aster to list it, and including headings and subheadings: **\*\*The Importance of the Coroners Act\*\*** \- The Coroners Act (R.S.O. 1990, Chapter C.37) is crucial for OHS, as evident from the recent amendment of the OHS Act through Bill 186. [\*\*Key Points\*\*] \- The Act provides for investigation and inquest (Section 17(2)), and recommendations for preventing similar deaths (Section 18(3)). \- Coroners have investigative powers and may delegate them to medical practitioners or police officers (Section 16(3)). \- A coroner\'s inquest is public and has the support of a jury, but the jury does not have the power to apportion fault or blame. **\*\*Coroners Act Sections\*\*** \- Section 18.1: If the coroner suspects the death was not of natural causes, they must advise the regional coroner and the Crown Attorney. \- Section 19: If an inquest is necessary, the coroner must notify the Chief Coroner and hold an inquest. \- Section 31: The purposes of an inquest are to determine the circumstances of the death, including who, how, when, where, and by what means the deceased came to their death. \- Section 32: An inquest is public, except in cases where national security might be endangered or a person is charged with an indictable offence. \- Section 33: Every inquest must be held with a jury of five persons. \- Section 47: The coroner has the power to maintain order at an inquest and may call for the assistance of peace officers to enforce orders. **Smoke-Free Ontario Act** [\*\*Applicability\*\*] \- The Act applies to all tobacco products except those intended for nicotine replacement therapy. [\*\*Prohibition\*\*] \- Tobacco cannot be used in enclosed public places, workplaces, schools, condominium common areas, private home daycare, and reserved sport arena seating areas. [\*\*Employers\' Obligations\*\*] \- Comply with the Act \- Give employees notice of no-smoking policy \- Post signage \- Remove ashtrays and equipment \- Ensure violators are removed from the workplace [\*\*Additional Notes\*\*] \- A no-reprisal clause protects employees who comply with the Act \- Exceptions include facilities for veterans, hotels, motels, and inns, as well as scientific research facilities \- Where another smoking law or bylaw exists, the more stringent one will prevail **\*\*Canadian Human Rights Act\*\*** \- The Act is based on the principle that all individuals should have equal opportunities to make their own lives. \- Prohibited grounds for discrimination: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability, and conviction for which a pardon has been granted. \- The Act also prohibits discriminatory practices, employment and employee organizations, and provides for no harassment, no sexual harassment, and no retaliation. \- Duty to accommodate and exceptions are also outlined in the Act. \- Relevant sections of the Canada Labour Code: sections 122.3 (rights of employees) and 132 (pregnancy and nursing employees). \*\*Note:\*\* The Canadian Human Rights Act is similar to the Ontario Human Rights Code, with a focus on dignity and worth. **Non-smokers' Health Act** [\*\*Summary\*\*] \- Regulates smoking in federal workplaces and on common carriers \- Applies outside of Canada on transportation modes (aircraft, train, motor vehicle, vessel) [\*\*Key Points\*\*] \- Employers responsible for protecting non-smokers from second-hand smoke in the workplace (Section 3) \- Employers must prevent smoking in the workplace and designate a room or area for smoking (Section 3) \- Smoking prohibited on aircrafts and trains (Section 4) \- Employers who are agents of Her Majesty are not immune to prosecution under this Act (Section 8) \- Fines for non-compliance outlined in the Non-smokers' Health Regulations (COR/90-21)