Module 2 - Occupational Health and Safety in Ontario

Roles and responsibilities

Occupational Health and Safety in Ontario

Module 2.1 - Learning objectives

  • Know about certain applicable legislation
  • Know about certain applicable provincial organizations
  • Know about the potential impacts for failing to act
  • Know about the concept of due diligence

Module 2.2 - Ontario and Canadian legislation

Ontario and Canada has a range of legislation related to workplace health and safety. Here are some notable examples:

  • Occupational Health and Safety Act
  • Workplace Safety and Insurance Act
  • Ontario Fire Code
  • Ontario Building Code
  • Criminal Code of Canada
  • Human Pathogens and Toxins Act
  • Environmental Protection Act
  • Transportation of Dangerous Good Act
  • Health Protection and Promotion Act
  • Nuclear Safety and Control Act

For the purposes of this workshop, the focus is on the Occupational Health and Safety Act.

Each piece of legislation has generated regulations that detail further processes and clarify related issues. For example, Regulation 860, made under the Occupational Health and Safety Act, establishes the requirements for the Workplace Hazardous Materials Information System (WHMIS), Regulation 213 establishes requirements for construction projects, etc. A simple way to think of it is that the Act states the “what” and the regulation states the “how”.

Contravening a regulation is contravening the legislation from which it stems. And a regulation may be even more detailed if it requires employers to meet an adopted standard. For example, standards developed by the Canadian Standards Association are not themselves law. However, a regulatory authority, such as the Ministry of Labour, Training and Skills Development, may cite the standard in regulation, thereby making it enforceable and part of law. A good example of this would be CSA Z412-00 – Guideline of Office Ergonomics. This standard, while developed as a reference point, has been incorporated into Ontario legislation, thereby creating minimum standards for office ergonomics. There are many more examples, including standards that regulate personal protective equipment, lift trucks, robots, etc. The list of incorporated standards is available through the Canadian Standards Association.

The Occupational Health and Safety Act sets out the duties of workplace parties (employer, supervisor, and worker), which are covered in the Worker Health and Safety Awareness workshop. It is important to note that these duties form the basis of the internal responsibility system, which means that everyone has duties to ensure a healthy and safe work environment.

It is important to note that legislation sets the minimum standard, meaning that legislation is the minimum acceptable criteria for a particular subject matter.

Although each piece of legislation above is independent, many of these laws will intersect. For example:

  • the Occupational Health and Safety Act sets out the minimum requirements for workplace health and safety;
  • the Workplace Safety and Insurance Act set out the framework for worker’s compensation in Ontario;
  • the Ontario Fire Code sets out minimum fire and life safety elements for maintenance to an acceptable standard;
  • the Ontario Building Code sets out the minimum requirements for the construction and renovation of a building.
  • The Criminal Code of Canada sets out criminal law. The relevance of this legislation will be covered later in this workshop.

Terminology matters!

It is important to understand how legislation is written and the expectations that come with it. You will regularly encounter the following terms in legislation, policies, and procedures, with each term carrying its own meaning.

  • Shall – is used to express a requirement; something that someone is obligated to do.
  • Should – is used to express a recommendation; something that someone is advised, but not required, to do.
  • May – is used to express an option – e.g. a choice – that is permissible within the context of the legislation.
  • And – is used to express an added requirement or option.
  • Or – is used to express an alternate requirement or option.

In many circumstances, the reader will find that “shall” often prevails in legislation or procedures, with “should” or “may” in guidance documents.

Further, you’ll notice that legislation is divided into parts, sections, and subsections. While managers or supervisors are not required to memorize or specifically recall a particular section of legislation, it is important to recognize how legislation is presented. For example, Part III of the Occupational Health and Safety Act prescribes the duties of employers and other persons. Section 25 outlines the duties of employers, with subsections offering further precision around these duties. Subsection 2(h) prescribes that the employer shall “take every precaution reasonable in the circumstances for the protection of a worker”. Reference to this subsection – a foundational part of this workshop – would read Occupational Health and Safety Act, Part III, section 25 (2) (h).

Module 2.3 - Regulatory authorities

Legislation specifies the expected requirements and regulatory authorities enforce those requirements. This workshop will cover two regulatory agencies, namely:

Ministry of Labour, training and skills development

Established in 1919 to develop and enforce labour legislation, the mission of the Ministry of Labour, Training and Skills Development is to advance safe, fair, and harmonious workplace practices that are essential to the social and economic wellbeing of the people of Ontario. Workplace health and safety, employment standards and labour relations are under their auspices. Through the Operations Division, inspectors enforce requirements under the Occupational Health and Safety Act.

Certain types of incidents, specifically those that are of greater severity, such as critical or disabling injuries and fatalities, must be reported to the Ministry of Labour, Training and Skills Development. In most cases, these reports must be immediate; therefore, it is critical that these events be reported to the University immediately. Failure to report these instances may result in orders to comply, fines, or even regulatory prosecution. As you will recall from the Worker Health and Safety Awareness workshop, you should get help for an injured person and contact Protection Services at ext. 5411.

The Office of the Chief Risk Officer will report to, and liaise with, the Ministry of Labour, Training and Skills Development on behalf of the University.

The sections below provide further information on enforcement and penalties under the Occupational Health and Safety Act.

Workplace Safety and Insurance Board

The Workplace Safety and Insurance Board (WSIB) of Ontario is one of the largest insurance organizations in North America: it covers over five million people in more than 300,000 workplaces across Ontario. The WSIB provides wage-loss benefits, medical coverage, and support to help people get back to work after a work-related injury or illness, and is funded by premiums paid by Ontario businesses (including uOttawa). The WSIB provides no-fault collective liability insurance and access to industry-specific health and safety information for Ontario businesses. This means that workers are eligible for certain benefits if they are injured or become ill while employed and means that they do not have to pursue individual claims against an employer. This practice dates back more than 100 years.

Workplace accidents are reported to WSIB by uOttawa when an incident results in medical care or lost time. Failure to report a work-related injury to WSIB in the prescribed timeline and/or format results in a monetary fine to the University. It is critical that every worker report to their supervisor (and to the University) an incident, no matter how minor they believe it to be, through the appropriate channels and within in the appropriate timeframe so that the University can meet all its requirements under the Workplace Safety and Insurance Act. As you will recall from the Worker Health and Safety Awareness, a workplace accident is declared using the Accident, Incident, Occupational Illness or Near Miss report form and must be reported as soon as practicable and no more than 24 hours after the incident.

It should be noted that reports to Protection Services are not a WSIB declaration. Protection Services creates reports for its own records and does not complete incident reports for the purposes of workplace accidents. Therefore, the worker or supervisor involved must dutifully and expeditiously complete and submit the Accident, Incident, Occupational Illness or Near Miss report form.

The Health and Wellness Office at Human Resources will report to, and liaise with, the Workplace Safety and Insurance Board on behalf of the University. This office also manages the University’s Return-to-Work program, whose goal is to safely and expeditiously return injured or ill workers to work.

Expand the accordions below for more information on enforcement and penalties under the Workplace Safety and Insurance Act.

Module 2.4 - uOttawa procedure 14-1

Taking matters a step further, the University has established Procedure 14-1 – Internal Responsibility Procedure for Health and Safety Issues under Policy 77 – Occupational Health and Safety. Procedure 14-1 defines the roles and responsibilities for health and safety matters as they apply to members of the University community and explains the University health and safety accountability structure. The procedure is applicable to all members of the University of Ottawa community.

The procedure outlines the employer and supervisor’s duty to take every precaution reasonable in the circumstances to protect health and safety and to prevent accidents, incidents, occupational diseases, and injuries in its workplace. The concept is referred to as due diligence, which is the level of judgment, care, prudence, determination, and action that a person would reasonably be expected to perform under particular circumstances. 

The procedure expands on the duties prescribed under the Occupational Health and Safety Act and applies them to the University’s setting. Expand the accordions for each group.

The procedure provides a roadmap for University personnel with regard to their health and safety responsibilities at the University and is in addition to their responsibilities under Ontario law. Where there remains uncertainty, the reader must defer to a reasonable standard of care and proceed in a duly diligent manner.

Module 2.5 – Due Diligence

Regulatory offences – such as those under the Occupational Health and Safety Act – are strict liability. The only defense is to demonstrate that you acted with due diligence in exercising your authority. In other words, despite your best and reasonable efforts to prevent such an incident from occurring, the conditions existed and no amount of reasonable (or perhaps, foreseeable) action would have prevented or mitigated the incident. This is a very high bar to meet and is generally reliant on well-kept (and heavily documented) policies, programs, procedures, training, monitoring and action. Weakness in any links in this chain will likely result in an unsuccessful attempt to prove that an individual (or employer) acted with due diligence in a given circumstance.

In considering due diligence:

  • Can a reasonable person reasonably foresee something going wrong?
  • What is the potential harm (and its severity) to workers?
  • Is there an opportunity to prevent or mitigate the incident?
  • Who is responsible for preventing the incident?

If you answer these questions and conclude that an event was unpreventable, you are starting to form the foundation of a due diligence defence. Of course, you must have documentation to demonstrate the efforts made. Examples of documentation that will assist is establishing due diligence include:

  • Policy and evidence of regular review and implementation
  • Work procedures and proof of communication
  • Training records
  • Meeting minutes/notes (formal or informal)
  • Inspections and observations of the workplace
  • Documented incident reports and corrective actions
  • Logbooks and inspection records
  • Maintenance and repair records
  • Emergency drills
  • Enforcement of local procedures and practices

Normally, all of the above is required for a due diligence defence to possibly succeed. You would need to demonstrate that you have exercised due care and diligence to avoid the particular outcome. In other words, due diligence boils down to a simple question – what more could a person reasonably be expected to do in the given circumstances. If there really is nothing else that could have been done, you have probably exercised due diligence – but you still need to demonstrate it through record keeping. It is important to reiterate that due diligence is a high bar and that it is very likely that more could have reasonably been done.

Think of due diligence as a simple mathematical equation, where:

  • X equals what a reasonable person would do in a given set of circumstances
  • Y equals what you did in these circumstances

If X minus Y is greater than or equal to 0, you will probably be convicted. And just like in grade school, if you can’t show your work, you’ll probably be convicted.

The Office of the Chief Risk Officer has reproduced (with permission) a due diligence checklist published by the Canadian Centre for Occupational Health and Safety (CCOHS). While no checklist is perfect, it offers a basic example of the high bar for a due diligence defense.

General Duty Clause

It is important to highlight section 25 (2) (h) – the general duty clause. Not everything is foreseeable; therefore, occupational health and safety legislation contains general duty clauses. These clauses establish the broad duties of person directing work, namely employers and supervisors.

Duties of Employers

Section 25(2)(h) – an employer shall…take every precaution reasonable in the circumstances for the protection of a worker;

Duties of Supervisors

Section 27(2)(c) – a supervisor shall…take every precaution reasonable in the circumstances for the protection of a worker.

If there is no specific legislation or regulation on a particular topic, the general duty clause will apply. For example, there is no legislation outlining ergonomic requirements for workstations. There are certainly best practices and guidelines (including the CSA standard, as referred to earlier), but nothing specific within the Occupational Health and Safety Act itself. That does not mean an employer or supervisor can provide ill-suited workstations. The employer or supervisor still has the duty to protect the worker, but it means that it must be defined by the employer/supervisor and within reason for the circumstances.

You might be thinking that this requirement lacks direction or clarity. You would be right, but it is simply not possible for one governmental body to anticipate and legislate requirements for every business in the province. Therefore, each employer/supervisor is responsible for identifying hazards, assessing their risk, controlling the hazard, and monitoring for effectiveness.

Need Help?

If you find yourself in a situation where there is no legislation, guidance, or defined practice, ask yourself these questions:

  1. What happens if something goes wrong? (e.g. injury/illness)
  2. Could there be a penalty stemming from this action? (E.g. order/charge/fine)
  3. What more could I be doing to prevent an injury or illness?
  4. How do I determine what practice is acceptable? (E.g. regulation, standard, guideline, benchmarking, literature, etc.)

It may be difficult – especially in a leading research environment – to know the ramifications of a particular activity; however, that means it is even more critical to thoroughly identify hazards, assess risks, and implement control measures. A higher degree of hazard control is never a bad idea, especially if it means a greater level of security. You have resources available to help!

Module 2.6 – Criminal Liability

Criminal liability is more than regulatory liability and may even be layered on top of regulatory prosecutions.

In 1992, after just eight months in operation, an explosion rocked the Westray coal mine in Pictou County, Nova Scotia. The explosion resulted in the deaths of 26 workers. The Fifth Estate and the Journal co-produced The Last Shift, a documentary about the tragedy (warning – sensitive content, graphic language and is available in English only).

Following the disaster, a provincial inquiry led by Justice Peter Richard found that “the Westray story is a complex mosaic of actions, omissions, mistakes, incompetence, apathy, cynicism, stupidity and neglect.”  (The Westray Story: A Predictable Path to Disaster). All attempts to prosecute the company and its officials for actions that led to the deaths of 26 men failed1. Significant pressure from labour unions and safety advocates ensued ,and after several failed private member’s bills, the fifth attempt in 2003 resulted in amendments to the Criminal Code of Canada, which provided a framework for corporate liability in Canada. The amendments were enshrined under section 217.1, which states:

Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

This means that corporate officials – including supervisors – are subject to criminal proceedings in the event of a marked departure from the conduct of a reasonable person in the particular circumstances. An accused must be shown to have displayed reckless disregard for the lives and/or safety of others. The provision is meant to be punitive for those convicted who have acted (or failed to act) in the course of their workplace responsibilities. These charges are on the same spectrum as other major charges and involve civic police authorities, although the regulatory agency (such as the Ministry of Labour, Training and Skills Development) would likely be heavily involved in any such proceedings.

Criminal Code Case Examples

To date, there have been few tests in Canada of the provisions enacted under the Criminal Code; however, brief summaries of those cases are available on the CCOHS website. Perhaps one of the most notable to date comes from Christmas Eve 2009 in Toronto. A swing stage carrying six workers collapsed and fell 13 stories. Four workers fell to their deaths. One worker survived the fall, suffering serious and life-altering injuries. The sixth worker, who was wearing a fall arrest harness tethered to a lifeline, was pulled to a nearby balcony. Following the incident, the organization (Metron Construction Inc.) and its owner were charged under the Criminal Code. Through plea agreements, certain charges were reduced; however, criminal charges were maintained against the corporation (resulting in a fine of $750,000) and the supervisor of the project (resulting in prison sentence of 3.5 years).

A more relatable case – notwithstanding an American example – comes from UCLA (warning – sensitive content, graphic language and is available in English only).

The principal investigator in this case faced four felony charges for violating California labour code and, if convicted, up to 4.5 years in prison. A settlement agreement was reached and charges were dropped in 2018 once a series of conditions were fulfilled. An incident similar to this example, including the charges to the individual principal investigator, could occur in Canada. Therefore, it is critical that supervisors identify and evaluate hazards, assess risks, and implement controls for every project.


Penalties for those convicted of criminal offences may be fines, imprisonment, or both. Such penalties are assess separately and on a different scale than those imposed for violating regulations. While individuals and organizations are usually only charged for the most severe occupational health and safety offences, the penalties match the severity of the charges. Although sentencing guidelines provide a framework, the fines are not capped and individuals face a realistic risk of imprisonment.