Legal Connection: Mediation vs. prosecution

Although OHS regulators across Canada have the legislative authority to sit down and mediate OHS non-compliance concerns, there is frequent political and bureaucratic pressure to pursue a prosecution. Prosecution is dramatic, high profile, often the recipient of media exposure, and gives the appearance the government is doing something to improve health and safety.

However, in my view, the mediation and negotiation of improved OHS legal compliance, as well as improvements to OHS management systems is a much more practical, cost-effective and efficient way of satisfying the concerns of OHS regulators, meeting legal standards, and approving health and safety in the workplace.

The challenge then is how to get the regulator and other workplace stakeholders to the mediation table.

One of the most effective way to attempt to mediate resolutions with OHS regulators and other workplace stakeholders, is through the appeal of orders and directions issued by OHS inspectors. The importance of the right to appeal cannot be overemphasized.

When an OHS regulator issues an order or direction, it is a clear statement, under the authority of OHS legislation, that the recipient, usually an employer, has contravened the law. This is essentially the same allegation when there is an OHS prosecution. Therefore, when orders are issued by the regulator, they must be taken very seriously.

The benefit of appealing an order on the merits, time limits or other grounds, not only gives an opportunity to challenge the correctness of the order, but also facilitates mediation. I have been involved in several recent mediations of orders, at the Ontario Labour Relations Board that have been quite successful in several respects. Orders have been willingly withdrawn by the regulator, after a full and complete discussion and negotiation.

In a mediation there is a balance between the OHS inspector, the recipient of the order - usually the employer - and the trade union or other interested parties. The mediation session levels the playing field for all parties to have an equal opportunity to state their case, listen to the other party’s position and look for reasonable and constructive compromises that may in fact be a “win” for everyone. The dynamic of a mediation is very different than litigation, where parties are very protective of their interests, unwilling to “put their cards on the table”, and are taking aggressive, strategic legal positions in asserting their legal rights.

The mediation process can be an agent of positive change for OHS legal compliance, practical improvements in the OHS management system, and enhancement of the internal responsibility system. The latter point is huge when it comes to the continuing relationship between the employer and management, the union and workers, and the OHS regulator. Preserving the relationship, fostering constructive dialogue between the workplace stakeholders and the regulator, agreeing that improved health and safety can reduce risk of accidents and injuries is in everybody’s interest, is a highly-sought outcome from mediation that cannot be achieved through prosecution.

Mediation may not work in all circumstances or with all disputes. However, it is a much-preferred means of resolving OHS legal compliance and management system problems, either voluntarily at the workplace, or through the process of appealing OHS orders, than prosecutions.

The rather blunt instrument of prosecutions, with large fines, is based on a simple and often ineffective theory of deterrents. Since the workplace parties and the OHS regulator have an ongoing relationship, the improvement of that relationship through mediation, rather than prosecution, will only enhance workplace health and safety

Norm Keith leads the national OHS practice at Gowling Lafleur Henderson LLP. You can reach him at (866) 862-5787 ext.85699 or by email at [email protected]