A few tell-tale signs can indicate a shift in an inspector’s focus
“It’s challenging because the Ministry of Labour wears two hats and that’s where a lot of the questions come up,” said Jeremy Warning, partner at law firm Mathews Dinsdale and Clark, speaking at the Partners in Prevention conference in Mississauga, Ont. on May 1. “They wear the hat of an investigator where they are looking to gather evidence that will be used to prosecute, but this is also the inspector who wears an auditor hat who is going to look to the workplace and determine whether he or she believes there is a contravention of the act or regs and perhaps issue a corrective order.”
Ministry of Labour inspectors have the right to conduct inspections at workplaces across Ontario. This allows them to ensure the employer is complying with the Occupational Health and Safety Act and regulations.
“They can enter into private property without a warrant, they can require production of documents, they can take photographs, conduct tests, interview people, and inspectors can exert these powers both in proactive and reactive circumstances,” said Julie Weller, an associate at Mathews Dinsdale and Clark, who co-presented with Warning at the conference.
Further confusing the matter is the fact that the individual who is conducting an inspection and the person who is doing the investigation are one in the same.
“It’s the same person coming back to the workplace doing the same things except at some point their purpose shifts and the tricky part is determining when that happens,” said Weller.
There are a few tell-tale signs that will determine if an inspection has turned into an investigation at your organization. The first is to look at how the inspector is collecting information. When an inspector conducts a routine inspection, they may be taking notes in a notebook and might have casual discussions with workers. If they start having much more formal interviews with specific employees in a board room or office, it might be turning into an investigation.
“Now we are talking about a different beast, much more in line with the approach one would take if you’re going to prosecute something,” Warning said.
If they are having a third party conduct a report on a faulty piece of equipment, for example, rather than having the employer get the report themselves, that could be a sign of an investigation.
“Arguably they could direct the employer to do that and say, ‘We want you to get this tested’. Why don’t they do that? Because if they compel it from you, it’s not admissible against you,” Warning explained.
Alternatively, if the ministry is bringing in their own experts — ergonomists, hygienists, engineers — they are likely conducting an investigation and will not share that report with the employer.
If the inspector is asking due diligence-type questions, that’s another sign, since due diligence has nothing to do with issuing orders. These types of questions are only relevant in prosecutions and might include inquiries about how often a task had been performed in a particular way prior to an incident or if protective equipment was always used when performing the task.
If they are taking photographs, gathering workplace documents and taking witness statements, you might have an investigation on your hands.
“Singularly that’s not enough to tip the balance, but collectively they paint a fairly complete and telling picture of what’s happening,” Warning said.
Another clear indicator is if the inspector shows up with a search warrant. The only way to get a warrant is if the ministry says they have reasonable and probable grounds that an offence has been committed and therefore seeks authorization of the court to go into the workplace and obtain information.
Yet another clear indicator is if the inspector is cautioning a witness. This is a very formal act where the inspector will read a paragraph that says they believe the witness themselves has committed an offence under the act and they can end the interview and obtain legal advice if they wish.
“If that happens, don’t talk anymore. There is no logical or legal reason to continue the interview. You will never talk you way out of it and everything you said up to the caution cannot be used against you. It’s compelled. If you keep talking, they will confirm all the information you provided before the caution and it’s now voluntary and it’s admissible against you,” Warning said.
If an inspector is at your workplace, it’s important to take notes and ask questions. You can periodically ask if they are conducting an inspection or an investigation and ask if you can have representatives present during testing or examinations as well as receive copies of those reports.
“Don’t be afraid to engage with the Ministry of Labour inspector when they are at your workplace. You don’t have to be afraid of them and you don’t need to be afraid of asking questions about what they’re doing. You’re just trying to gather more information; you won’t be found to be obstructing justice,” said Weller.
Along with the tell-tale signs that an inspection has turned into an investigation, a bit of common sense can go a long way.
“If you have a serious workplace event, a fatality or a serious critical injury, we know the ministry is going to be looking to prosecute somebody. It is exceptionally rare for the ministry to have one of those events occur, attend and not charge somebody,” Warning said. “Sure, they have their compliance hat on, but we all know that’s not the end goal. We all know it’s going to go farther than that.”