More OHS charges expected from Ontario labour ministry: lawyer

Expect the Ontario Ministry of Labour (MOL) to prosecute more companies that violate the Occupational Health and Safety Act, a trend one OHS lawyer says has been transpiring in the province recently.
“The role of the Ministry of Labour is 90 to 95 per cent enforcement. So look elsewhere for prevention and assistance. The Ministry of Labour is there to enforce health and safety laws in Ontario,” said Norm Keith, a partner at Gowlings, addressing the law firm’s annual Workplace Risk Management Year in Review, held recently in Toronto.

Speaking on recent trends in occupational health and safety legislation, policy and court decisions, Keith reviewed cases that illustrate the more challenging legal environment now faced by employers who violate the OHSA. In addition to the ministry’s greater willingness to enforce the Occupational Health and Safety Act (OHSA) through prosecution, he said, courts have higher expectations of organizations to prove the due diligence defence.

Trials are longer, costlier and more complex, and the MOL continues to be the only jurisdiction in Canada that pursues OHSA charges even after criminal charges are laid, according to Keith.

Keith looked first at the ministry’s decision, in 2009, to charge the City of Guelph after a student was killed when a washroom wall collapsed as she climbed onto a change table. Although the OHSA has a one-year limitation on prosecution from the infraction date and the accident occurred more than a year after construction, the MOL argued the city had a continuing duty to comply with structural requirements.  

“That specific duty, in Section 25 of the OHS Act, is not often used for prosecution, but if it is, the limitation period does not protect you,” he said.

In another case, the Meaford District Fire Department in Meaford, Ont., was charged when a firefighter’s breathing apparatus malfunctioned. The MOL argued the volunteer service had not properly activated an accountability system. While such a system is recommended, Keith said, it is not a legal requirement. The court found in the department’s favour, adding that “superhuman efforts” could not be expected in an emergency.
In the case of Metron Construction, brought after four workers were killed and a fifth seriously injured when a scaffold collapsed, the company was charged with violations under the OHSA and with criminal negligence causing death under Bill C-45 of the Criminal Code. It was fined $290,000. While other jurisdictions usually drop regulatory charges when criminal charges are laid, Keith said, the Ontario MOL lets the OHSA charges stand.

“It reinforces that, especially in Ontario, there is legal risk not only in the Occupational Health and Safety Act regulations, which have a maximum fine of $500,000, but you also have that Criminal Code potential liability,” he said.  
The Gowlings Workplace Risk Management Year in Review event also featured Tom Teahan, chief corporate services officer at the Workplace Safety and Insurance Board (WSIB). Teahan discussed recent challenges, trends and new initiatives at the WSIB, saying the board wants to improve the way it operates and deliver better service to employers.

The board’s central challenge, he said, remains its unfunded liability, currently at $14.2 billion. The deficit, he added, was largely a result of the decision after 1995 to “outsource” return-to-work. Injured workers could take retraining programs only if it was agreed they would not return to their workplace.

“Effectively, it meant detaching the worker from the injuring employer and getting them into an external program. Not surprisingly, return-to-work efforts were not very successful,” he said.

Two years ago, Teahen said, the WSIB introduced a strategic plan. It focuses on sufficient funding; revenue must cover costs; right-sizing costs; efficient administration; and stakeholder relationships and service excellence.

In response to Harry Arthurs’ Funding Review Report — which, among other things, looked at the WSIB’s unfunded liability and proposed measures to ultimately eliminate it — he said, the government is requiring the board reach full funding by 2027. Premiums have been increased each of the last three years and will rise a further 2.5 per cent in 2013.

The board’s priority, Teahen added, is to improve the way it handles the average, no-lost-time claim and improve return-to-work. It is also transforming its medical strategy: it has, for example, 300 new return-to-work staff who made 21,000 employer visits in 2011.

“We’ve now in-sourced our return-to-work function, and we have representatives of the WSIB going out to meet with employers to try and facilitate return-to-work outcomes,” he said.

“As a result, where we were at about 30 per cent return-to-work with injuring employers before, we now see success with about 76 per cent return-to-work with the injuring employer.” 

Policy changes are also planned, he added, and consultations have begun on benefits policies and on rate group structure, which Arthurs found to be complicated and out of date.

As a result of these changes, Teahan said, the WSIB in 2011 — for the first time in 10 years — had a surplus of $150 million. They expect to see another surplus in 2012. 

“It will be more than $150 million, I think,” he said. “So we are on the right track.”