1. Due Diligence & Ontario’s Occupational Health & Safety Act
Presented by:
Murray Hyatt, B.Sc.
Paul A. Cyr, CRSP
Ottawa Hospital, Ottawa, ON

2. The Occupational Health & Safety Act
Minimum Standard
Regulations made under the OHSA
Internal Responsibility System
Rights of Workers
Offenses and fines
The concept of Due Diligence

3. Regulations and Standards
Reg. 67/93-Health Care and Residential Facilities
Reg. 851-Industrial Establishments
Reg. 860-WHMIS
Reg. 833 Control of Exposure to Chemical and Biological Agents
Designated Substances Regulations (Mercury, ETO, Asbestos etc.)

4. Regulations and Standards, cont’d
X-ray Safety-Regulation 861
Window Cleaning-Regulation 859
Critical Injury defined-Regulation 834
Others:
Workplace Safety and Insurance Act
Ontario Building Code,
Ontario Fire Code,
CSA standards, etc...

5. Internal Responsibility System
Principal that workplace hazards can be dealt with through communication and co-operation between employer and workers.
Workplace parties share the responsibility for occupational health and safety and must strive to identify hazards and develop strategies to protect workers
Multipartite Approach

6. Rights of Workers Right to know Right to participate Right to refuse
Right to stop work

7. Duties and Responsibilities of Workplace Parties Under the OH&S Act

8. Section 25 - Duties of Employers
Equipment, materials and protective devices as prescribed are provided
Equipment, materials and protective devices are maintained in good condition
Measures and procedures prescribed are carried out in workplace
Equipment, materials and protective devices provided are used as prescribed
Appoint a competent person as a supervisor

9. Duties of Employers cont’d
Provide information, instruction and supervision to worker to protect safety of worker
Acquaint a worker or a person in authority over a worker with any workplace hazards
Afford assistance to JHSC
Prepare and review at least annually a written OH&S policy and develop a program to implement that policy

10. Duties of Employers cont’d
Take every precaution reasonable in the circumstances to protect the worker

11. Definition of Competent Person
Qualified because of knowledge, training, and experience to organize the work and its performance
Familiar with OH&S Act and Regulations
Has knowledge of any potential or actual danger to safety in the workplace

12. Section 27 - Duties of Supervisors
Ensure worker uses or wears the equipment and/or PPE required by employer
Advise worker of any potential or actual danger to worker’s safety
Ensure worker works in compliance with OH&S Act and Regulations
Provide a worker with written instructions
Take every precaution reasonable in the circumstances to protect the worker

13. Section 28 - Duties of Workers
Work in compliance with OH&S Act and Regulations
Use or wear equipment and/or PPE required by employer
Report any contravention of OH&S Act and Regulations
Report absence or defect in any equipment or protective device
Shall not engage in any horseplay, or rough and boisterous conduct

14. Section 9 - Powers of JHSC
Make recommendations about the safety of workplace
written response required within 21 days
Obtain information from the employer
Consulted about testing in the workplace
Annual workplace inspections
Review DSR Assessments and Control Programs

15. Section 23 - Constructors
Defined: means a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project by himself or by more then one employer.
Must ensure Act and Regs are abided by on the project
Ensure every employer and worker on project comply with Act and Regs. and that H&S of workers on project be protected
Ensure MOL is notified of projects as required
Take every precaution reasonable in the circumstances to protect the worker

16. Section 32 - Directors and Officers of Corporation
Shall take all reasonable care to ensure that the corporation complies with:
The Act and Regulations
Orders and requirements of inspectors and directors
Orders of the Minister

17. Section 43 - Right to Refuse
Restricted right for hospital workers
endangers the safety of another person
inherent or normal condition of employment

18. Refusal to Work
Worker may refuse if he or she has reason to believe that:
operation of equipment or device may endanger
physical condition of workplace may endanger
contravenes OH&S Act and/or Regulations

19. Work Refusal - Stage One
Worker promptly reports refusal to supervisor
Supervisor investigates forthwith
in presence of worker
Labour JHSC member
Worker remains in safe location until investigation complete

20. Work Refusal - Stage One
Refusal resolved, worker returns to work

21. Work Refusal - Stage Two
MOL notified
Pending results of investigation
worker to remain in a safe location
worker may be assigned other work
another worker may be assigned work; however, must be advised of refusal in the presence of Labour JHSC member

22. Work Refusal - Stage Three
MOL investigation and decision
Reprisals by employer prohibited

23. Bilateral Work Stoppage
Certified worker has reason to believe that dangerous circumstances exist
Dangerous circumstances
contravention of OH&S Act and/or Regulations
contravention poses a danger to workers
delay in controlling may seriously endanger workers
Restricted if work stoppage endangers safety of another person

24. Bilateral Work Stoppage cont’d
Prompt investigation by supervisor
Investigation by second certified worker who represents other workplace party
If both certified workers agree work stoppage may be ordered

25. Workplace Accidents Reporting Obligations

26. Critical Injuries Injury places life in jeopardy
Produces unconsciousness
Results in substantial loss of blood
Fracture of a leg or arm, but not a finger or toe
Amputation of a leg, arm, hand or foot but not finger or toe
Burn to a major portion of the body
Loss of sight in an eye

27. Reporting Critical Injuries/fatalities (Section 5, Reg 67/93)
MOL - immediate notification
MOL - written report within 48 hrs
WSIB-written within 3 days

28. Non-critical Injuries Lost-time/health Care/modified Duties
Must be reported to WSIB within 3 days of employer being notified
Notification to MOL within 4 days
Manager/supervisor to investigate accident and take steps to prevent recurrence

29. Section 66 - Offenses and Penalties
Every person who contravenes or fails to comply with the act or ministry orders is guilty of an offense . Upon conviction, fines up to $25,000 and up to 12 month jail term per offense.
Corporation: fines up to $500,000 per offense.
Accused person (incl. Corp.) may be found liable for any act or neglect on the part of directors, managers, supervisors, officers etc., as if offense was committed by accused
Strict liability

30. Section 54 - Enforcement
MOL inspectors can enter any workplace (except dwellings), anytime without warrant
Seize or make use of anything in the workplace so as to gather evidence
Question anyone, order any tests, take photos, take samples, etc., all at the expense of the employer
Issue orders ; in effect until hazard rectified
50,000 site visits before year 2000

31. Being “willfully blind” will not save you, it will bury you
Due Diligence
As a legal defense -acquittal in either of two ways:
Proving that all reasonable care was taken to avoid the episode or,
Proving that one believed in a mistaken set of facts (ignorance of the law doesn’t count) that, if true, would render the prohibited act innocent.
Being “willfully blind” will not save you, it will bury you

32. Establishing Due Diligence
Develop specific policies, practices and procedures for hazardous activities in the workplace
Provide adequate orientation and training to workers
Ensure that competent supervisory staff monitor hazardous work and communicate risks to workers
Audit the workplace for foreseeable health and safety risks and protect workers accordingly
Ensure compliance through rules and discipline
Never assume that the worker will know enough about the risks involved in any given task