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					HR MANAGER’S GUIDE TO
 HEALTH AND SAFETY

      CYNTHIA K. KONTRA
Filion Wakely Thorup Angeletti LLP
       September – November 2009


         LECTURE #4 :
    EXTERNAL ENFORCEMENT
           WHMIS
    EXTERNAL ENFORCEMENT
          ROADMAP

1. Ministry of Labour (“MOL”) Inspections &
   Investigations
2. Potential Liabilities
         MOL INSPECTORS

• Mandated to enforce and administer the
  OHSA
• Experts on OHSA
• Emphasis on enforcement
• Work with your inspector
     INSPECTORS’ POWERS

                •   Entry
Generally:      •   Test
                •   Ask questions
• Administer    •   Review of employer documents
                •   Direct Joint Occupational Health and
• Inspect           Safety Committee (“JOHSC”)
                •   Seize
• Investigate   •   Require reports

• Enforce       •
                •
                    Stop work
                    Issue Orders & Tickets
             INSPECTIONS

• Lower level than investigation
• Pro-active
• MOL renewed focus on inspections
• More and more inspections are being
  conducted
• On MOL‟s own initiative or in response to a
  complaint
  EMPLOYER RIGHTS DURING
       INSPECTION

• Limited, so be cooperative!
• Must grant entry and access
• Worker representative
  (JOHSC, Union Representative, etc.) has a
  right to accompany Inspector: Employer
  does not!
          INVESTIGATIONS

• Reactive
• More focused than Inspections
• Designed to determine cause of an event
WHEN INVESTIGATIONS OCCUR

• Workplace accident
• Work Refusal
• Health and Safety
  Complaint to MOL
• Concern with designated
  substances
• JOHSC not functioning
  properly
      DOCUMENTS, RECORDS,
         AND PROPERTY

• Production of records,
  reports, drawings,
  documents
• Professional reports –
  employer bears the cost
• Making copies
• Get a receipt
• Remove items for testing off-
  site
ORDERING WORKPLACE TESTS

• Testing to determine safety
• Shut-down equipment to test
• Order new safety precautions (e.g.
  guarding)
• Sometimes, off-site expert testing is required
  PRESERVE THE WORKPLACE

• Inspector orders the workplace preserved
  for testing, inspection, or investigation
• Usually for circumscribed time period
• Inspector should grant reasonable and
  legitimate requests to resume operations
• Fatality or critical injury, do not disturb until
  order is lifted
OBSTRUCTING THE INSPECTOR

•   Don‟t!
•   An offence to obstruct, hinder, molest, or interfere
•   An offence to tamper with equipment, devices, etc.
•   You must cooperate
•   You must disclose
•   You must speak to the Inspector (unless you get to
    the caution stage)
    EXTERNAL ENFORCEMENT
      ROADMAP REVISITED

1. MOL Inspections & Investigations
2. Potential Liabilities
    1.   Orders
    2.   Ticketing
    3.   Prosecutions
    4.   Bill C-45
INSPECTORS’ ORDERS

      • Power to issue orders against
        any stakeholder
      • Inspector must believe that
        OHSA is being contravened
      • Orders may be verbal or
        written (even verbal are later
        confirmed in writing)
                   ORDERS

• Issued where immediate health and safety risk
  exists
• Not necessary to have input from the employer or
  other stakeholders, but it is usually sought
• Provide notice and location of contravention
• Section of OHSA that is contravened
• Time for compliance
• Nature of the order is posted in the workplace
• Complainant receives a copy, where applicable
                ORDERS

If contravention of OHSA is dangerous to the
   health and safety of the worker
Inspector may order:
• Equipment not to be used
• Work to be stopped
• Workplace to be cleared of workers
        WHEN THE EMPLOYER
        RECEIVES AN ORDER

• Notify MOL within 3 days of the date the employer believes
  the Order has been complied with
• Sign the notice
• Need a signed statement from worker representative, either
  agreeing or disagreeing, or advising that the worker
  representative refuses to sign
• Post the Order and Notice of Compliance for 14 days
• Notice of Compliance does not necessarily equal
  compliance
   WHY YOU SHOULD COMPLY

• Orders are enforceable in court
• Orders can lead to a court order restraining
  the contravention
• Fines
• MOL prosecutions
                APPEALS

• You can appeal an Order and its contents
• You can appeal a decision not to issue an
  order
• Appeals are made to the Ontario Labour
  Relations Board (“OLRB”)
• Appeal to try and get an Order off your
  record
                    HOW TO APPEAL

• Notice of Appeal is filed with the OLRB within 30
  days of the Order
• Time limits may be extended in some
  circumstances
• In person, in writing or via telephone to the MOL
• Provide necessary information: Nuts „N‟ Bolts
    EXTERNAL ENFORCEMENT
      ROADMAP REVISITED

1. MOL Inspections & Investigations
2. Potential Liabilities
    1.   Orders
    2.   Ticketing
    3.   Prosecutions
    4.   Bill C-45
INTRODUCTION TO TICKETING

• Ticketing:
   – Less formal way of charging an individual or corporation than
     laying an information
   – Industrial and construction workplaces
   – Examples of offences:
       • Failure to ensure a safe work surface
       • Failure to have appropriate guarding
       • Failure to wear protective devices
    Set fines of $195 or $295 plus 25% victim surcharge
EMPLOYER’S OPTIONS FACING
       A TICKET

• Options if Issued a Ticket:
  – Plead guilty and pay the set fine
  – Request a trial, plead guilty at trial and
    make submissions as to penalty
  – Request a trial and defend against the
    alleged offence
   CONSEQUENCES OF GUILT


• Potential Consequences:
 – A finding or pleading of guilt goes to the
   prior “record” of the employer
 – Convictions can be used to justify higher
   penalties for subsequent serious offences
    EXTERNAL ENFORCEMENT
      ROADMAP REVISITED


1. MOL Inspections & Investigations
2. Potential Liabilities
    1.   Orders
    2.   Ticketing
    3.   Prosecutions
    4.   Bill C-45
PROSECUTIONS – AN OVERVIEW

 – Traditional method of enforcement
 – Information laid under Part III of the Provincial Offences
   Act
 – Maximum fine for corporations: $500,000
 – Maximum fine for individuals: $25,000
 – Individuals can also face up to 12 months in prison
 – Directors and Officers also liable
  WHEN DOES MOL PROSECUTE

• Follows Ministry of Labour Inspection or
  Investigation, where OHSA or Regulations have
  been violated
• Always follows the laying of charges
• Ministry of Labour – Legal Branch decides whether
  to prosecute
• OHSA prosecutions are different from and in
  addition to Bill C-45 criminal prosecutions
                 THE POA

• The process is governed by the Provincial
  Offences Act
• POA deals with procedural issues such
  as laying an information, arraignment,
  entering a plea, subsequent amendments
  to charges, conduct of the trial, disposition
  of the judgement and appeals
• POA provides uniformity to the process
PROSECUTION TIME LIMITS

• One-year limitation period
  for the MOL to lay charges
• MOL often does an
  extensive investigation;
  therefore, charges often
  are not laid until near the
  end of the one-year limit
• Because of the delay, it is
  important to act quickly on
  any MOL recommendations
  (before charges are laid)
HOW DO PROSECUTIONS WORK?

• Commence by laying          • The trial is held in front
  an Information                of the Justice of the
• A summons is issued           Peace or a Provincial
  to the accused,               Court Judge
  providing time, date        • At the arraignment
  and location of the first     stage the alleged
  court appearance              offender enters a plea
• At first appearance,          (guilty or not guilty
  time and date of trial is
  set and other pre-trial
  issues determined
       RULES OF EVIDENCE

• Evidentiary rules are
  a very important
  component of the
  OHSA prosecution
• Technical aspects of
  the trial
• Governed by the
  Ontario Evidence
  Act, the Canadian
  Charter of Rights
  and Freedoms, and
  the Common Law
        RIGHT TO COUNSEL

• Charter right to obtain and instruct counsel
  without delay after detainment or arrest
• Applies to all agents of the Crown – MOL
  Inspectors included
• Inspectors have no power to arrest, but may
  detain during an inspection or investigation
                    DETENTION

Detention occurs whenever:
• a person is physically constrained by an agent of the
  Crown
• an agent of the Crown assumes control over a person
  through a demand or direction that may have significant
  legal consequences and prevents that person‟s access to
  legal counsel
• a person submits to the taking away of his/her liberty due
  to a reasonable belief that the choice to do otherwise does
  not exist

       Anyone detained
       is entitled to counsel.
    DUTIES OF CROWN AGENT

– Inform detainee of right to retain counsel without
  delay
– Inform detainee of the reasons for the detention
– Provide detainee with opportunity to retain counsel,
  if requested
– Allow detainee reasonable amount of time to
  consider whether or not to exercise above right

Failure by the Crown Agent to follow the above
 steps may result in any evidence obtained
 through the detainee being declared
 inadmissible in court
        CROWN DISCLOSURE

• The accused has a right to
  receive, within a reasonable time
  before trial, full and complete
  disclosure of the Crown‟s case
• Disclosure requires the Crown to
  make available the entire
  prosecution file, including any
  information regarding Crown
  witnesses and what they are
  anticipated to say
• This right is recognized by the
  Charter, POA and Common Law
           PURPOSE OF CROWN
              DISCLOSURE
• Ensures that the Defence is aware of the case in chief of
  the prosecution and all of their relevant evidence
• Helps resolve non-contentious and time consuming issues
  and advance the preliminary hearing or trial in order to
  more efficiently use the courts‟ time
• Encourages resolution of cases including, if appropriate, the
  entering of guilty pleas at an early point in the proceedings
• Important note: Crowns‟ obligation to disclose is ongoing
• Failure to disclose all relevant information may result in a
  postponement, adjournment, or a mistrial
           ONUS

• Onus of proof rests with Crown
• Crown must prove “beyond a reasonable
  doubt” that all of the elements of the offence
  have been met
• If the accused is able to establish
  “reasonable doubt” as to any element of the
  charge, then the accused is acquitted and
  the charges are dismissed
• Reasonable doubt is usually raised through
  evidence of witnesses
     RIGHT TO REMAIN SILENT

• Only exercisable to avoid self-incrimination when witness is
  not testifying in court
• Once a witness is called to testify in court and under oath,
  the right to remain silent is gone
• A witness, including the accused, cannot refuse to answer
  a question because it may incriminate them
• Under the Charter, self-incriminating evidence given by the
  witness cannot be used against the witness, except in a
  perjury prosecution
• Witness answers in court cannot be used in any
  subsequent civil proceeding
    COMPELLABILITY OF
      THE ACCUSED

• The accused cannot
  testify against himself
  or herself
• Therefore, the Crown
  prosecutor cannot
  call the accused as a
  witness
          PUBLIC DOCUMENTS

• Public documents are admissible on
  their own as evidence, without proof
• Public documents are those which are
  for the benefit of the public and which
  the public has a right to see
• Document must be written statement
  of a public official/officer made in the
  course of carrying out public duties
• Must be in respect of what the public
  official has a duty to record
• Admissible without proof because of
  the presumption that public officials
  will act honestly and in accordance
  with their mandate
            BUSINESS RECORDS

• Admissible, per se, if they are made in the usual and ordinary
  course of the conduct of business and it was in the usual and
  ordinary course of such business to make such a document
• This is an evidentiary efficiency rule, as the creator of the
  business record does not have to called as a witness to prove
  the business record before it is admissible
• One proviso: Party intending to use a business record must
  give 7 days notice under the Evidence Act to the other parties
  and produce the business record for inspection within 5 days
  of giving notice
• Failure to comply with the time limits may result in the
  business record not being admitted into evidence
         BUSINESS RECORDS

Even if time limits not complied with or where
business record was not made in the ordinary
course of business, it may still be admitted if:
   – The business record was made contemporaneously
     with the event recorded
   – The business record must have been made by
     someone with personal knowledge of the matter
   – The business record must have been made by
     someone under a duty to make it
            MEDICAL RECORDS

• Doctors and medical professions
  are generally not required to come
  to court to testify
• In their absence, medical records
  may be admitted
• Parties seeking to rely on the
  medical record must obtain leave
  from the court and give 10 days
  notice to the other parties before
  their medical record can be used
• Medical records must be signed by
  a legally qualified doctor licensed to
  practice in Canada
PRIOR CRIMINAL CONVICTIONS

• Evidence of prior criminal convictions goes only to
  the credibility of the accused and not to proof of
  the alleged offence
• Generally, the Crown can only raise prior
  convictions if the accused testified or if the
  accused character has been put in issue through
  other witnesses
• Prior charges that do not result in a conviction
  cannot be raised by the Crown
STATEMENTS AND CONFESSIONS

• Statements and confessions are subject to
  certain rules before they can used as
  evidence
• Under the Common Law, statements must
  be given “voluntarily” to a “person in
  authority”
        PERSON OF AUTHORITY

• There is no precise definition for “authority”
• Usually someone involved in the arrest, detention,
  examination or prosecution of the accused
• Likely includes a Ministry of Labour Inspector
• Court uses a subjective test to determine if someone is a
  person of authority
• Therefore, court looks at the accused‟s perception of the
  situation
• If the accused believes that the person they are speaking
  with is a person of authority, then that person is generally
  considered a person in authority
    VOLUNTARY STATEMENTS

• Crown must prove beyond a reasonable doubt that
  a statement was voluntary before they can use it
• Statements generally will be ruled involuntary and
  inadmissible when the statement was:
  – Made as a result of fear or prejudice or hope of
    advantage
  – The accused did not possess an operating mind
  – Made as a result of oppression or threats
   OTHER SITUATIONS WHERE
STATEMENTS ARE NOT VOLUNTARY

• Witness intoxication
• Oppressive environment
• Interrogation of children
• Failure to provide adequate caution before questioning the
  witness
• Questioning which is similar to cross-examination
• Questioning without the consent of counsel

The above situations could lead to a finding that a
 statement was made involuntarily and is therefore
 inadmissible
              DEFENCES



•   Procedural
•   Substantive
•   Due Diligence
•   Officially Induced Error
               PROCEDURAL

• Often raised at the outset of a trial
• May result in the dismissal or stay of the charges
• Include the timeliness of the trial or investigation
  and delays within the process
• Under the Charter, the accused has a right to a
  trial within a reasonable amount of time
• Abuse of process
               SUBSTANTIVE

• Defences that go to the heart of the allegation, and
  involve a factual or legal determination of guilt or
  innocence
• Depend on the facts and circumstances of each case
• “Proof of the offence” defence: If the Crown has not
  proven its case, which by itself would be a complete
  defence to the charge. Remember, the Crown has the
  onus of proving its case beyond a reasonable doubt
  and failure to do so results in no conviction
           “DUE DILIGENCE”

• Another example of a substantive defence
• Only available in response to specific offences
  set out in S. 66(3) of the OHSA
• Under a due diligence defence, must argue that
  the accused did everything it had to do in order to
  comply with the law
• The incident would have to be merely an accident
“OFFICIALLY INDUCED ERROR”

• Another substantive defence
• The Crown argues that they were following the advice of
  the Ministry of Labour Inspector
• Prosecution for following erroneous advice would be unfair
• Accused must prove on a balance of probabilities that they
  were mislead by the MOL Inspector and the reliance was
  responsible for their alleged breach
• However, accused must show that the advice that was
  sought and given by the MOL Inspector was both
  reasonable in the circumstances and reasonable to follow
  the facts of the case
     VERDICT & SENTENCING

• After hearing all of the
  evidence and the
  submissions of the
  parties the court will
  render a verdict
• If the accused is found
  guilty, the trial judge will
  hand down a sentence
• The verdict and
  sentence of the court is
  final and binding on all
  parties, subject to any
  appeal
         NOT GUILTY


Ends the process, subject to the
  prosecution‟s right to appeal
                   GUILTY

• If a guilty verdict is found, the court may hear
  further submissions and evidence regarding
  the appropriate sentence
• When contemplating the appropriate sentence,
  the trial judge considers: deterrents,
  retribution, rehabilitation/reform
• Sentences for health and safety offence seek
  to improve working conditions where the
  offences occurred
     REHABILITATION MODEL

• Trial judge may impose
  rehabilitative measures
  such as safety training
• Most sentences seek to
  improve workplace
  conditions through fines
• Theoretically, a stiff fine
  acts as a deterrent
MAXIMUM FINES

     • For an individual: $25,000
       per count
     • For a corporation:
       $500,000 per count
     • Individuals could also
       receive jail sentences of
       up to 12 months
     • Case could have multiple
       counts = larger overall
       fines
    SUBJECTIVE FACTORS
  CONSIDERED IN SENTENCING
• In making a determination on fines, the court
  considers mitigating and aggravating factors
• Following conviction or a plea agreement, it is up to
  the employer to convince the court that there are
  sufficient mitigating factors to warrant a lower fine
• Good safety history and track record of
  responsiveness in dealing with MOL orders may
  result in a lower fine
• History of non-cooperation with the Ministry could
  result in a higher fine
          FINES

• Public perception or reaction to the
  case may play a role in encouraging
  the Crown to request a higher fine
• Horrific injuries, younger workers,
  level of sophistication of the employer,
  all contribute to the size of the fine
      FINES: SPECIFIC FACTORS

•   Employer size
•   Number of employees
•   Previous conviction record, including tickets
•   Contributory negligence on the part of the
    injured worker
          RECENT HISTORY

• MOL has launched a    • Check the Court
  more aggressive         Bulletins on the MOL
  media campaign to       website:
  highlight increased     http://www.labour.gov
  fines received by       .on.ca/english/
  employers when
  convicted under the
  OHSA
    EXTERNAL ENFORCEMENT
      ROADMAP REVISITED

1. MOL Inspections & Investigations
2. Potential Liabilities
    1.   Orders
    2.   Ticketing
    3.   Prosecutions
    4.   Bill C-45
   CORPORATE LIABILITY


BILL C-45
  Employers must take
proactive steps to reduce
  the risk of serious or
 critical accidents in the
        workplace!
REDUCING THE RISK OF
CORPORATE LIABILITY


 Compliance
  Program
                      Evidence of
      +           =   Due Diligence
                      and Mitigating Factor
Health & Safety
     Policy
         REVIEW OF BILL C-45

• Criminal liability
• Organizations defined
• “Directing minds” of organizations
• Increased consequences if guilty
• Individual liability for criminal negligence
• Potential for parallel OHSA prosecutions
          DUTIES OF OFFICERS
            AND DIRECTORS

• Directors and officers comprise the “directing mind” of the
  employer
• The OHSA states that every director and every officer of a
  corporation shall take all reasonable care to ensure that the
  corporation complies with,
   – OHSA and its regulations
   – Orders and requirements of inspectors and Directors,
     and
   – Orders of the Minister
• What does this mean in practice?
REVIEW OF EMPLOYER DUTIES

• Duty to take all reasonable precautions to protect the health
  and safety of those workers under their charge
• Provide information, instruction and supervision to worker to
  protect their health and safety
• Appoint “competent persons” as supervisors
• Acquaint a worker or a person in authority over a worker with
  any workplace hazards
• Post a copy of the OHSA and appropriate regulations in the
  workplace
     TRANSPAVÉ INCORPORATED

•   First successful prosecution under Bill C-45
•   Worker crushed after equipment guards disabled
•   Inadequate safety training
•   No written work procedures
•   Management knew and did nothing
•   Fines of $100,000 + $10,000 for criminal
    negligence causing death
COMPETENT PERSONS

   • Supervisors generally
   • Competent Persons who are not
     supervisors
   • Right to enforce directions/instructions
   • Off-hours issues
   • Emergency contact system
           POLICIES, PROGRAMS
             AND PRACTICES
• Prepare a written health and safety policy
   – Must review the policy annually
   – Must post the policy in the workplace
• Develop a health and safety program to
  implement the health and safety policy
• Assist the JHSC to carry out its functions
• Do not engage in reprisals
• Prescribed duties & accident reporting duties
       COMPLIANCE PROGRAM

• As the company‟s “directing mind”, directors and officers
  must promote safe workplace practices
• A key element will be a compliance program
• The compliance program should target activities that may
  attract criminal liability:
   – Health and safety infractions
   – Environmental issues
   – Corporate accountability concerns
      CREATING AN EFFECTIVE
      COMPLIANCE PROGRAM
• Appoint a compliance office to administer and monitor the
  compliance program
• Focus on educating and training employees, agents and
  contractors
   – Ensure they understand the employer‟s commitment to
     promoting a safe and healthy workplace
• Ensure that all managerial and supervisory personnel
  understand their “duty of care”
   – To stop/prevent the commission of criminal offences
APPLICATION OF AN EFFECTIVE
   COMPLIANCE PROGRAM
• Implement or improve occupational health and
  safety management and practices

• Develop a written health and safety policy

• Ensure that the policy is regularly updated and
  distributed to employees

• Reinforce safe practices through discipline
  and performance appraisals
          WHMIS


  WORKPLACE HAZARDOUS
MATERIALS INFORMATION SYSTEM
           (WHMIS)
      WHMIS BACKGROUNDER

• Rationale: Workers have a right to know about the
  health and safety hazards associated with hazardous
  chemicals and materials in the workplace
• Response: A Canada-wide information system about
  hazardous materials in the workplace
• WHMIS Aims: To stop injuries, illnesses, deaths,
  medical costs and other safety hazards caused by
  hazardous materials
           APPLICATION OF WHMIS

•   Applies to “controlled products”
     – Products, materials and substances
     – Meet the hazard criteria in the Controlled Products Regulations under the federal
       Hazardous Products Act
•   Six categories of controlled substances
     – Compressed gas
     – Flammable & combustible material
     – Oxidizing material
     – Poisonous and infectious material (3 sub-categories)
     – Corrosive material
     – Dangerously reactive material
    PROVIDING INFORMATION ON
     CONTROLLED PRODUCTS

• Three methods of providing information:
  – Labels on the containers of controlled products
  – A Material Safety Data Sheet to supplement the label
  – Worker education program
• Controlled product supplier provides label and
  MSDS to the employer
  – The employer passes on the information to the workers
    and provides education programs
                  WHMIS COVERAGE

Federal Legislation                             Provincial Legislation
• Main Purpose: to require                      • Main Purpose: to require
  suppliers of controlled                         employers to obtain health
  products to provide health                      and safety information about
  and safety information as a                     controlled products and to
  condition of their sale or                      pass on this information to
  importation                                     employees
• Application: Federally                        • Application: Provincially
  regulated employers                             regulated employers


   Framework of the WHMIS information protection
  process is primarily governed by the federal legislation
 FEDERAL WHMIS LEGISLATION

• Creates universal requirements for the
  production, sale and importation of
  controlled products
• Controlled products must be effectively
  identified by suppliers and employers
   – Standardized classification criteria
   – Statutes focus on suppliers
   IMPLEMENTING LEGISLATION
          (FEDERAL)
Hazardous Products Act
   – All suppliers who sell or import hazardous materials
   – Must provide labels and MSDS to customers
• Controlled Products Regulations
   – Defines controlled substance
   – Information requirements for labels and MSDS
• Ingredient Disclosure List
   – Lists chemicals which must be identified on an MSDS
   IMPLEMENTING LEGISLATION
        (FEDERAL) (cont’d)

Hazardous Materials Information Review Act
   – Creates “HMIR Commission”
   – Federal agency to review information disclosure exemption claims
• Hazardous Materials Information Review Regs.
   – Sets out criteria to assess validity of exemption claim
Canada Labour Code
   – Canadian Occupational Safety and Health Regs.
   IMPLEMENTING LEGISLATION
         (PROVINCIAL)

• Based largely on federal rules  uniformity
   – Provinces draft regulations to reflect their own
     local economic concerns
• Ontario‟s implementing legislation:
   – The OHSA – imposes duties upon employers
     to:
       • Obtain or provide labels and MSDS
       • Provide worker education programs
   – The WHMIS Regulation
 MAIN COMPONENTS OF WHMIS

• Designation of hazardous materials
• Assessment of biological and chemical agents
• Worker training and education
• Supplier and workplace labels
• Material safety data sheets (“MSDS”)
• Protection of confidential business information
   – Disclosure of confidential business information in medical
     emergencies
        CONTROLLED PRODUCT
        EXEMPTIONS (ONTARIO)

Fully Exempted Controlled Products
• Wood and wood products
• Manufactured articles
• Tobacco or tobacco products
• Controlled product covered by:
   – Transportation of Dangerous Goods Act (federal) or
   – Dangerous Goods Transportation Act (provincial)
    CONTROLLED PRODUCT
    EXEMPTIONS (ONTARIO)

Partially-Exempted Controlled Products
• Explosives (Explosives Act)
• Cosmetics, drugs, food, devices (Food & Drugs Act)
• Pest control products (Pest Control Products Act)
• Radioactive materials (Atomic Energy Control Act)
• Material packaged as a consumer product and in
  quantities normally used by the consuming public
    EMPLOYER DUTIES FOR
PARTIALLY-EXEMPTED PRODUCTS

• Not required to obtain a supplier label or
  MSDS
• Must ensure that the products are labeled
  with a label that meets the workplace label
  requirements
• Must provide worker training with respect to
  these types of products
            HAZARDOUS WASTE

• Hazardous Waste: a controlled product that
  is intended for disposal or sold for
  recycling/recovery
• WHMIS regulation has limited application to
  hazardous waste
• Employer must identify all containers of
  hazardous waste stored on site
   – Must also train workers regarding safe storage,
     handling
• Workplace label or MSDS not required
     SUPPLIERS’ WHMIS DUTIES

• Supplier: one who manufactures, processes, packages, sells or
  imports a hazardous material
• Duties set out in federal Hazardous Products Act and its
  Controlled Products Regulations
   – Classification of hazardous materials
   – To label all controlled products as a condition of sale or importation
   – To provide MSDS for controlled products as a condition of sale or
     importation
                 CLASSIFICATION

• WHMIS has classes and symbols to describe general types of
  dangerous materials
• Each class is defined by the nature and degree of the hazard
  present in each controlled product
   – Defined by the Controlled Products Regulations
• Supplier must determine if product sold or imported is classified
  as a controlled product
   – Must compare the product‟s characteristics to the criteria outlined
     in the Controlled Products Regulations
THE SIX WHMIS CLASSES

 Class A: Compressed Gas

 Class B: Flammable and Combustible Material

 Class C: Oxidizing Material

 Class D, Div. 1: Poisonous & Infectious Material: Immediate &
 Serious Toxic Effects

 Class D, Div. 2: Poisonous & Infectious Material: Other Toxic Effects

 Class D, Div. 3: Poisonous & Infectious Material: Biohazardous
 Infectious Material

 Class E: Corrosive Material

 Class F: Dangerously Reactive Material
                          LABELS

• WHMIS imposes duty to label controlled
  products
   – Applies to products that are made, imported,
     packaged or processed

• Imposes set of standard product identifiers,
  hazard symbols and precautionary and first
  aid measures
• Label can be any mark, sign, device, stamp,
  seal, sticker, ticket, tag or wrapper
REQUIRED LABEL INFORMATION

• Product name
• Name of supplier
• MSDS reference
• Hazard symbols
• Risk phrases (describe hazardous properties)
• Precautionary measures for handling, use
• First aid measures
• Note: abbreviated label permitted for 100mL or less
              MATERIAL SAFETY
               DATA SHEETS

• All suppliers are required to prepare an MSDS for controlled
  products
• Technical summary of health and safety info
• Factual information about harmful ingredients
• Guidance in the use and disposal of the product
• The MSDS must be made available to workers in the workplace
  for reference
• An MSDS has several required sections
    MSDS REQUIRED SECTIONS

• Product information
                             The MSDS must also include
• Hazardous ingredients             any other hazard
                              information about which the
• Physical data
                              supplier is aware or ought to
• Fire or explosion hazard               be aware
• Reactivity data
                             The MSDS must be up to date
• Toxicological properties   – the supplier must update and
• Preventative measures       review the MSDS as required

• First aid measures
• Preparation information
    EMPLOYERS’ WHMIS DUTIES

• Set out in the OHSA and the WHMIS
  regulations
• An employer that is in charge of a worksite
  where controlled products are present must:
   – Ensure that the controlled products are
     labeled or identified
   – Obtain or provide MSDS for controlled
     products
   – Educate workers
LABELING AND IDENTIFICATION

• Must ensure that every product has a supplier label
   – If the supplier label is faulty, contact supplier for new label and
     safely store product in the meantime
   – If cannot obtain new label from supplier, contact MOL
• Supplier label cannot be removed, changed or destroyed until
  the container is empty
   – If the supplier label tampered with, must replace it
   – Suppliers typically send extra labels
   – Otherwise, the employer may attach a “workplace label”
           WORKPLACE LABELS

• Must contain the following information
   – The identity of the product (naming)
   – Information for the safe handling of the product
       • Pictures, words, symbols may be useful
       • Workers must understand the risks, be aware of the precautions
   – A statement that the MSDS, if supplied or produced, is available
     for the workers to review
• Requirements for workplace labels more general than federal
  requirements for supplier labels
    MSDS FOR CONTROLLED
  PRODUCTS FROM SUPPLIERS
• Must obtain an MSDS from the supplier on or before the first
  shipment of the controlled product
   – If cannot obtain MSDS, the employer may store but cannot use the
     product until it obtains an MSDS
   – If supplier cannot provide an MSDS, the employer must notify the
     MOL in writing
• MSDS expires three years after publication date
   – If it expires, must try to obtain a valid one from supplier
   – Otherwise, must make reasonable effort to update MSDS
MSDS FOR CONTROLLED PRODUCTS
   MADE IN THE WORKPLACE

• Must prepare an MSDS for controlled products produced in the
  workplace
• Employer MSDS requires same information as the supplier
  MSDS
• Must update MSDS every three years
   – If new information available, must update within 90 days
• Must make copies of the MSDS available to workers, JHSC or to
  H/S representative
           WORKER EDUCATION

• Goals of a successful education program:
   – Providing workers with the ability to use safe procedures when
     handling a controlled product
   – Providing workers with an understanding of why such procedures
     are necessary
• Employer must consult with JHSC or H/S representative in
  creating and delivering training
• Employer must pass along any information it knows or ought to
  know about a controlled product
        ELEMENTS OF EDUCATION
              PROGRAM

• Labels: information, purpose, significance
• MSDS: information, purpose, significance
• Procedures for the safe use, storage, handling
  and disposal of a controlled product
• Procedures to be followed where fugitive
  emissions are present
• Procedures to be followed in case of an
  emergency involving a controlled product
              WORKER TRAINING

• Must train all workers who are exposed or likely to be exposed to
  a controlled product
• Then, the employer must try to determine whether the worker
  understands and can apply the training
   – Written or oral examinations, practical demonstrations
   – If worker fails, simply retrain him or her
• The employer should review WHMIS programs
   – Annually, or
   – Whenever changes involving controlled products occur
      WORKERS’ WHMIS DUTIES


• Workers have a duty to report any
  violations of the OHSA or the WHMIS
  regulation
• Worker should inform the employer if
  they believe that they, or other workers,
  lack sufficient training regarding
  controlled products
         WHMIS ENFORCEMENT

• Ministry of Labour enforces both the federal and provincial
  WHMIS legislation
   – Two different levels of inspections and orders
• Check for proper and current labels and MSDS on controlled
  products
• Inspect education and training programs
• Monitor WHMIS compliance during regular visits, investigations
CONSEQUENCE OF FAILURE TO
   COMPLY WITH WHMIS

• MOL may issue an order to correct violation
   – May also stop the use of a particular
     controlled product

• Penalties for WHMIS violations are the
  same as for other OHSA violations:
   – Individuals: $25K maximum fine, max. 12
     mos. in jail
   – Corporations: $500K maximum fine
TOXIC SUBSTANCES
        TOXIC SUBSTANCES

• Definition: a biological, chemical or
  physical agent (or combination) whose
  presence or use in the workplace may
  endanger a worker‟s health or safety
• Control of toxic substances is governed by:
   – The designated substance regulations
     under the OHSA
   – The Control of Exposure to Biological or
     Chemical Agents regulation
   – Ministry of Labour orders
    DESIGNATED SUBSTANCES
          REGULATION

• Applies if there is a likelihood of
  exposure to a designated substance
  at any level

• Sets out the amount of designated
  substance to which workers can be
  exposed in a given time period

• Provides ways to control and
  measure
  the substance in the workplace
THE DESIGNATED SUBSTANCES

• Acrylonitrile              • Isocyanates
• Arsenic                    • Lead
• Asbestos (2 regulations)   • Mercury
• Benzene                    • Silica
• Coke oven emissions        • Vinyl chloride
• Ethylene oxide
       ASSESSING DESIGNATED
           SUBSTANCES

• If the designated substance regulation applies, the employer
  must perform an assessment
• Require consultations with JHSC or H/S rep.
• Questions to ask:
   – In what way is the designated substance present?
   – How do workers handle, store, process the substance?
   – Worker exposures and response/control mechanisms?
• Must be in written form, distributed to JHSC members or H/S
  representative
          CONTROL PROGRAMS

• Required if the assessment finds that a
  designated substance may affect a worker‟s
  health
• Control program is achieved through the
  following:
   – Engineering controls, work practices, hygiene
     control
   – Monitoring procedures
   – Personal worker exposure records
   – Medical examinations and surveillance
   – Training programs
      CONTROL OF EXPOSURE TO
   BIOLOGICAL OR CHEMICAL AGENTS
            REGULATION
• Unlike the Designated Substances Regulation, the CEBCAR
  deals with many substances at once
• CEBCAR sets limits for a wide range of hazardous agents
  found in the workplace:
   – Time-Weighted Average Exposure Value
   – Short Term Exposure Value
   – Ceiling Exposure Value
   – S.K.I.N.
• Levels must be achieved without protective devices
      CONTROL OF EXPOSURE TO
   BIOLOGICAL OR CHEMICAL AGENTS
         REGULATION (cont’d)


• Places positive duty on all
  employers to ensure that all
  measures are taken to reasonable
  protect workers from exposure to a
  hazardous agent
   – Construction employers exempted
QUESTIONS?

				
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