Safety in the Workplace

AuthorPaul Wearing
Safety in the Workplace
What You Should Know
The safety of employees in the workplace is primarily regulated by two
laws: the Ontario Occupational Health and Safety Act1 and the Ontar-
io Workplace Safety and Insurance Act, 1997.2 In addition to these laws,
safety in the trucking industry is monitored and enforced through regu-
lations to the Ontario Highway Trac Act.3
The primary defence to charges relating to a workplace injury brought
against a business is what is known as the “due diligence” defence. This
means that an accused business must persuade the court that it took
every reasonable precaution to prevent the workplace injury.
The Occupational Health and Safety Act [OHSA] is the m ain legis-
lative vehicle for maintaining and promoting workplace health and
safety standards in Ontario.
R v Ellis-Don Ltd, 1990 CanLII 6968 (Ont CA), Houlden JA
It is interesting to note that the law has no “purpose” clause, unlike al-
most all other legislation. This omission was not by accident. Without
a purpose clause, courts have much wider latitude when interpreting
obligations and duties under the law.
) The Stakeholders
This law imposes general duties and prescribed duties on employers,
owners, supervisors, constructors , suppliers, licensees, corporate ocers,
directors, and workers to enhance and protect the safety of workers. All
of these terms are specif‌ically def‌ined in the law. Employers shoulder a
particularly heavy responsibility unde r the law for the safety and well-
being of workers, which requires employers to be proactive in providing
for training and enforcement of safety precautions in the workplace.
Not surprisingly, the OHSA def‌ines a worker as a person who per-
forms work or supplies services for monetary compens ation. In addition,
persons who do not receive any pay are also workers under the OHSA if
they are
secondary school students who per form work or supply services un-
der a work-experience program, or
persons who perform work or supply ser vices under a program ap-
proved by a college of applied arts and technology, university, or other
post-secondary institution.
Under specif‌ied circumstances, “trainees” may also be deemed to be work-
ers.4 Furthermore the courts have interpreted the def‌inition of worker
to include independent contractors and on-site supervisory employees.
) Charges
Charges relating to the OHSA are laid under the Provincial Oences Act
by an Ontario Ministry of Labour (MoL ) health and safety inspector, who
must swear an information (lay charges) within one year of the alleged
oence, failing which the prosecution cannot go forward. The f‌irst notice
of being charged that an employer usually receives is the MoL’s service of
a summons to appear in court.
Because the MoL has up to a year to f‌ile charges, if an employer is to
defend the charges, it is imperative that the employer do a thorough in-
vestigation of all workplace safety incidents and store all documentation
for at least a year from the date of the incident. All prepared documenta-
tion should be titled “Privileged — Prepared to Instruct Counsel” so that
any pretrial motions for production of an employer's investigation reports
by the Crown can be defended.
The OHSA creates what is known as a “strict liability” oence. This means
that the Crown does not have to prove intent to commit the oence —

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