The Occupational Health and Safety Act

• Author: Netta Romano
• Pages: 391-423

391

The Occupational Health

and Safety Act

11

Learning Outcomes

After completing this chapter, you will be able to:

• Understand the internal responsibility system that

underlies Ontario’s health and safety legislation.

• Identify who is covered under the Occupational Health

and Safety Act.

• Outline the health and safety duties of parties in the

workplace.

• Identify workers’ rights under the OHSA.

• Understand the legal requirements surrounding work-

place violence and harassment.

• State the accident-reporting requirements under the

OHSA.

• Identify behaviour that constitutes reprisal under the

OHSA.

• Explain how the OHSA and its regulations are adminis-

tered and enforced and describe the test of due

diligence.

• Identify the provisions in the Criminal Code related to

an employer’s health and safety obligations.

Introduction ........................ 392

The Internal Responsibility System ...... 392

Who Is Covered? .................... 392

Duties of the Workplace Parties ........ 393

Workers’ Rights ..................... 399

Workplace Violence and Harassment .... 405

Accidents .......................... 410

No Reprisal (Section 50(1)) ............ 410

Administration and Enforcement ....... 412

Criminal Liability of Organizations ...... 420

Further Reading ..................... 421

Related Website ..................... 421

Key Terms .......................... 421

Review Questions ................... 422

Discussion Questions ................. 422

© 2022 Emond Montgomery Publications. All Rights Reserved.

392 EMPLOYMENT LAW FOR PARALEGALS

Introduction

Workplace health and safety laws in Ontario impose rigorous requirements on everyone

in the workplace, with a view to promoting a physically and mentally safe and healthy

work environment. Signicant penalties may be imposed whether or not the failure to

comply with a requirement results in an accident.

Nothing in recent memory has highlighted the importance of safety in the work-

place more than the COVID-19 pandemic. With many essential workplaces continuing

to operate, including health care, emergency services, public transportation, education

and childcare, and those ensuring the availability of food and staples, safety in the

workplace became the primary focus of government. Resources to prevent COVID-19

in the workplace were developed, including a tip sheet for display in the workplace, a

review of employer and employee rights and responsibilities in the workplace, and a

sample workplace safety plan and guide, as well as sector-specic guidance in educa-

tion, construction, child care and the restaurant and food services sector.

1

Two major Ontario statutes address health and safety in Ontario workplaces: the

Occupational Health and Safety Act 2 and the Workplace Safety and Insurance Act,

1997.

3 The OHSA focuses on promoting a safe and healthy workplace and preventing

work-related accidents and diseases. The WSIA, which also focuses on enhancing safety,

covers the compensation and reintegration of workers who are injured or who contract

a disease related to the workplace. This chapter examines the OHSA, and Chapter 12

looks at the WSIA.

The Internal Responsibility System

Ontario’s health and safety legislation is based on a system of joint responsibility,

which is referred to as the internal responsibility system. This sys tem is based on

the premise that government alone cannot effectively regulate all workplace risks.

Instead, the law emphasizes participation by all parties in the workplace to ensure a

healthy and safe environment.

In the internal responsibility system, joint health and safety committees (J HSCs)

play a pivotal role. Generally required in workplaces with 20 or more workers, a JHSC

is composed of equal numbers of management and worker representatives, who col-

lectively exercise specic powers. In workplaces with 6 to 19 workers, a single health

and safety representative exercises most of the same powers.

The OHSA gives workers the right to refuse unsafe work. Ontario Ministry of Labour,

Training and Skills Development (Ministry of Labour) inspectors may be called in where

the workplace parties are unable to resolve an issue. Parties who fail to fulll their

obligations are subject to signicant nes and even imprisonment.

Who Is Covered?

Ontario’s OHSA covers almost every worker and workplace in Ontario. Because the

OHSA applies to “workers,” an individual need not be an “employee” in the legal

1 Ministry of La bour, Training and Skills Development, “Resource s to Prevent COVID-19 in the Workplace” (last modi -

ed 15 June 2021), online: Government of Ontar io <https://www.ontario.ca/page/resources-prevent-covid-19

-workplace ?_ ga =2. 763 589 33.16 269 90 60 2.1614 00 94 80 -6 925 34 028 .1601 034 54 8>.

2 RSO 1990, c O.1 [OHSA].

3 SO 1997, c 16, Schedule A [WSIA].

internal responsibility

system

an approach to health and

safety that is based on

the belief that healthy and

safe workplaces require

the participation of all

parties in the work place

joint health and safety

committees (JHSCs)

advisory health an d safety

bodies that are composed

ofequal numbers of

management and worker

representatives; generally

required in workplaces

with 20or more workers

health and safety

representative

a person who exercises

rights and powers similar

to those of the joint health

and safety committee;

required in workplaces

with 6 to 19 employees

© 2022 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 11 THE OCCUPATIONAL HEALTH AND SA FETY ACT 393

sense of the term to be covered by the legislation. Section 1(1) gives the following

denition of a worker:

“[W]orker” means any of the following, but does not include an inmate of a

correctional institution or like institution or facility who participates inside the

institution or facility in a work project or rehabilitation program:

1. A person who performs work or supplies services for monetary

compensation.

2. A secondary school student who performs work or supplies services for no

monetary compensation under a work experience program authorized by

the school board that operates the school in which the student is enrolled.

3. A person who performs work or supplies services for no monetary compen-

sation under a program approved by a college of applied arts and technolo-

gy, university, private career college or other post-secondary institution.

4. [Repealed.]

5. Such other persons as may be prescribed who perform work or supply

services to an employer for no monetary compensation.

Unpaid interns and students on co-operative or eld placements are covered under

paragraphs 2 and 3 of the denition of “worker” as a result of amendments made to

the OHSA in 2014. Section 4 outlines the OHSA sections applicable to self-employed

persons.

“Workplace” is dened broadly in section1 as “any land, premises, location or thing

at, upon, in or near which a worker works.” The only Ontario workplaces that are not

covered by the OHSA are workplaces under federal jurisdiction (such as post ofces,

airlines, banks, and telecommunications companies), which are subject to the Canada

Labour Code,

4 and workplaces where work is done by an owner, occupant, or servant in

a private residence or its connected land (such as a nanny).

5 The OHSA applies with some

limitations and exceptions to farming operations but only if the owner employs a worker.

6

It should be noted that in Blue Mountain Resorts Limited v Ontario (Ministry of

Labour),

7 discussed later in this chapter under the heading “Ministry Inspections,” the

Court of Appeal for Ontario found that for a site to constitute a “workplace” for pur-

poses of requiring an employer to report a critical injury or death, there must be some

reasonable connection between the hazard giving rise to the death or critical injury and

a realistic risk to worker safety at the workplace.

Duties of the Workplace Parties

The OHSA places duties on everyone involved with the workplace: employers, con-

structors, supervisors, owners, suppliers, licensees, of cers of a corporation, and

workers. An “owner” includes a tenant, trustee, receiver, or occupier of the land on

which the workplace is situated. Where the OHSA is breached, several workplace

parties, including supervisors and workers, may be found personally liable along with

the employer and may be ned for breaching their duties under the OHSA. These

4 RSC 1985, c L-2.

5 OHSA, s 3(1).

6 Ibid, s 3(2)); Farming Operations, O Reg 414/05, s 2.

7 2013 ONCA 75.

© 2022 Emond Montgomery Publications. All Rights Reserved.