OHSLAW Report: May 2011

Edited by Norm Keith

Bill 160 is the proposed legislation that is poised to begin the process of reforming OHS in Ontario.

By Anna Abbott

Bill 160 is the initial legislative response to the release of the Report of the Minister of Labour's Expert Advisory Panel on Health Safety, also known as the Tony Dean Report.

Bill 160, Occupational Health and Safety Statute Law Amendment Act, 2011, was introduced by Minister of Labour Charles Sousa on March 3, 2011. Bill 160 has passed first and second reading, and is currently being reviewed by the legislative Standing Committee on Social Policy. If passed, Bill 160 will amend the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997.

Bill 160 does not purport to implement all of the recommendations made by the Tony Dean Panel, but is a first step toward reforming OHS in Ontario. Full implementation of all of the Dean Panel recommendations will require additional changes to the OHSA and WSIA, numerous changes to regulations under both acts, and changes to internal Ministry of Labour policies and procedures.

The major contention in the legislature with respect to Bill 160 is that it does not implement all of the changes recommended by the Tony Dean Panel. However, the changes set out a legislative framework that is the first step in an aggressive 'sea of change' in OHS culture in Ontario. The full effect of the changes recommended by the Tony Dean Panel will not occur until the new Prevention Council and chief prevention officer are in place and are able to assist the Ministry of Labour in shaping policy and legislative change.

In the last edition of OHSLAWTM Report, we set out the contents of the Tony Dean Report. The key recommendations included:

Appointment of a multi-stakeholder Prevention Council to assist in implementation of recommendations and new system structure Establishment of a separate Prevention Organization and a chief prevention officer to lead a more integrated, efficient and accountable system Mandatory training for workplace health and safety representative as well as workers and supervisors regarding workplace rights and responsibilities Mandatory entry-level training for construction workers on construction site safety Implementation of mandatory rigorous training standards for workers who work at heights and on other high-risk activities Tougher and ascending monetary penalties for those who place workers at risk of death or serious injury as well as the development of administrative monetary penalties Improved integration of OHS training in schools and universities Development of an accreditation program for top-flight employers, with less focus on frequency and cost of claims, that encourages them to influence the health and safety performance of contractors in their supply chains Integrated and targeted enforcement for workplaces in the "underground economy" The key provisions to be implemented by Bill 160 include:

Prevention mandate shifted to the Ministry of Labour (Part II of WSIA is repealed) Requirement for mandatory training for workers and health and safety representatives Expansion of powers for JHSC cochairs to make direct recommendations to employer/constructor where committee fails to reach a consensus Establishment of a Prevention Council and chief prevention officer Development of Codes of Practice Inspectors given power to refer reprisal complaints to the board Bill 160 is the skeleton legislation that gives the power to the Ministry of Labour to begin implementing some of the recommended changes. Although the proposed legislation sets out the requirement for mandatory training for new workers and health and safety representatives, it does not identify the scope of training that will be required in either circumstance. Presumably, the training standards and approved trainers will be established by the Prevention Council once it is fully operational. The same principle applies for the development of the Codes of Practice that will assist employers and constructors with meeting the specific health and safety requirements set out in the regulations. Further, The Bill does not address some of the other recommendations made by the Tony Dean Panel, including the implementation of a new poster outlining the rights and responsibilities of workplace parties, recommendations made for tackling the underground economy and protecting vulnerable workers, or the creation of administrative monetary penalties.

Employers will have to remain patient while the recommendations are slowly implemented. On February 14, 2011, six members were appointed to the interim Prevention Council that will assist the minister of labour in appointing a chief prevention officer. Once the Prevention Council and the chief prevention officer are formally appointed, Employers should be prepared for more significant and specific changes that will require time, effort and resources to be implemented

Timely Accident Investigations Can Help Reduce Costs Now and Legal Risk in the Future

By David Marchione

After a workplace incident occurs, it is important to conduct a thorough accident investigation as soon as possible. This may seem intuitive, yet there are many times when one does not take place.

Why conduct an accident investigation? Perhaps it is required by law. For example, section 173 of the B.C. Workers' Compensation Act requires that employers immediately undertake an investigation into the cause of specific accidents. Ontario's Occupational Health and Safety Act requires that the Joint Health and Safety Committee undertake an investigation into a critical or fatal injury. These types of investigations often require a report to be submitted to the health and safety regulator.

Even if it is not specifically required by the legislation, timely and thorough accident investigations can help employers identify gaps in their health and safety management systems. When there is an incident in the workplace, there is a tendency to blame the worker. Perhaps the worker did not follow the proper procedure for performing a task. But the bigger question is why the worker did not follow the proper procedure. Is it because they were not trained on the proper procedure? Is it because there is no system in place for supervisors to monitor the work? Perhaps the practices within the workplace allow for workers to take shortcuts without any reprisals or discipline. Looking at all of these factors, is the root cause of the incident the worker failing to follow proper procedures, or is it a breakdown in training or supervision? Proper identification of the root cause of an incident will allow the employer to try to effectively prevent a reoccurrence, as opposed to dealing only with the remedial causes (i.e., disciplining a worker for not following proper procedures), which may have little effect on preventing a reoccurrence.

Timely investigations help preserve evidence from the time of the incident. This evidence may be required at a later date. For example, if the health and safety regulator chooses to lay charges against an employer or an individual after an incident at a workplace, they may do so at some time well after the incident has occurred. Using British Columbia as an example again, the Workers' Compensation Act allows for charges to be laid two years after the last occurrence of the act or omission on which the prosecution is based. There may be many changes that...