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Additional Issues

  • Issued: December 16, 2010
  • Content last reviewed: December 2010

Some stakeholders raised issues during the consultation that they believed impact health and safety issues that were not the focus of this review. In addition, some issues emerged during the deliberations of the Panel or its research of issues. Some panel members believe that these issues may merit future consideration, however it was agreed that it is not appropriate that they be the subject of recommendations given that they were not consulted upon or that they are considered to be outside the scope of this review.

Creation of an Occupational Health and Safety Tribunal

Some stakeholders expressed support for the creation of a tribunal that would deal exclusively with matters arising under the OHSA, such as appeals of inspectors’ orders, prosecutions and allegations of reprisals, and appeals of administrative monetary penalties, if these are developed. Stakeholders felt that such a tribunal would develop expertise related to occupational health and safety, which would generally improve the quality of judgements, especially on technical matters. This is an important consideration for the MOL as well as employers and labour since decisions of OLRB adjudicators (and courts) can influence the development of occupational health and safety policy and legislation. Creating an occupational health and safety tribunal was not extensively discussed in either the public consultations or during the Panel’s deliberations. Therefore, the Panel is not making a specific recommendation but suggests that the concept is worth further evaluation.

Specific Vulnerable Workers

Taxi drivers

In 2007, Statistics Canada reported that between 2001 and 2005, taxi driving was the most dangerous job in Canada. The Panel heard from representatives of taxi drivers about frequent exposure to harassment and violence and received recommendations for mandatory shields in cabs and prepaid fares at night. Addressing the drivers’ concerns is not straightforward. Complex and variable employment relationships in the taxi industry can make it difficult to identify which party has the duties of the employer under the OHSA. Many drivers are self-employed or independent operators who contract for the use of a vehicle, licence and dispatch service. In addition, both municipal and provincial laws apply to the industry. The Panel recognizes the need to better protect the health and safety of taxi drivers and believes the Ministry of Labour should explore options for doing so.

Domestic workers employed in private residences

The OHSA does not apply to work performed in the private home by an owner or occupant, or a “servant of the owner or occupant” (Section 3(1)). As such, live-in caregivers and other domestic workers directly engaged by a homeowner are not covered by the OHSA. This is inconsistent with current approaches under the Employment Standards Act and the WSIA, which cover domestic workers to some extent, and with aspects of the Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009. The Panel supports a review of the exemption of “a servant” from the OHSA.

Determination of WSIB Cost Assessments Between Temporary Agency and Contracting Employer

The Panel heard frequently of the value of education, enforcement and incentives in improving health and safety performance. The emergence of employment relationships such as independent operators and temporary workers engaged through agencies has resulted in uncertainty as to which party is the employer and what responsibilities the employer carries. While this report addresses some of these issues, it does not make recommendations on the issue of WSIB premium rates for agencies and employers who engage temporary worker . The Panel heard that some employers in high-risk sectors or with high-risk work use employment agency workers to perform such work and thereby avoid the higher WSIB premium rates normally attached to such employers since the premiums for such workers are paid by the agency. There is a related concern that some agencies are not correctly classified for the type of work their workers perform. Since this issue relates to the authority of the WSIB to determine policy on setting the premium rate, the Panel has not made a recommendation in this area.

Coverage Under the Workplace Safety and Insurance Act, 1997

While it was recognized that WSIA coverage was not considered to be within the Panel’s scope, this issue was raised on several occasions by stakeholders during the consultation. The Panel heard that an estimated 38% of the Ontario workforce is not covered by the WSIA. It was argued that because the OHS system is funded through WSIB premiums, many employers are not paying their share for prevention and enforcement.

Creative Sentencing

Some of the recommendations in this report support changes to the financial penalties for contravention of the OHSA and its regulations. Some stakeholders noted that other jurisdictions also use non-financial penalties and suggested that Ontario should consider these. For example, Nova Scotia’s Occupational Health and Safety Act provides courts with the ability to impose penalties such as community service or financial contributions to public education in occupational health and safety. The Criminal Code currently allows probation orders to be applied to organizations; potential conditions could include

  • restitution for loss or damage resulting from an offence;
  • establishing policies, standards and procedures to reduce the likelihood of committing a similar offence in the future;
  • communicating and reporting with respect to implementation of, and accountability for, such policies, standards and procedures; and
  • publicizing any measures the organization is taking to prevent the offender from committing another offence or to remedy the harm committed.

A “duty of care” concept currently exists in law with respect to certain regulated professions (e.g. doctors, nurses) that must meet basic standards of care for the people they serve. It was suggested that a similar “duty of care” standard be applied to employers in respect of their workers, and that punitive measures specific to violation of this type of standard be developed.

The concept of creative sentencing was not extensively discussed in either the public consultations or during the Panel’s deliberations. Therefore, the Panel is not making a specific recommendation with respect to adopting creative sentencing but suggests that the concept is worth further evaluation.

Fiduciary Duty

The question of whether the concept of fiduciary duty includes occupational health and safety factors was raised by labour members of the Panel. Fiduciary duty is usually considered in terms of maximizing financial outcomes or prudent spending. A view was provided to the Panel suggesting that fiduciary responsibility should also incorporate environmental, social and governance factors, with occupational health and safety categorized as one of the social factors.

This issue was not a focus of consultations with stakeholders, and time constraints prevented the Panel from exploring this further. Therefore, the Panel is not making a specific recommendation with respect to fiduciary duty, but suggests that the concept is worth further evaluation.

Contact Centres

The Information and Resources section of this report identified that the current OHS system partners operate contact centres to provide information on their specific programs and services, as well as general health and safety information. The Panel was not able to evaluate the scope and range of these information services, but noted that some common elements exist while other elements relate specifically to the programs and services of each organization. While the Panel has no recommendation in this area, it notes that some potential exists for expansion of service and improvements in quality and consistency of information provided and therefore merits further review.

Training Tax Credits for Small Business

Small business representatives have told the Panel that small employers provide a significant amount of health and safety training to workers, placing a considerable financial burden on them. They state that the recommended introduction of new mandatory training for all workers would create further financial and compliance challenges. To recognize and encourage a continued commitment by small employers to invest in OHS training, stakeholders have suggested the introduction of a small business training tax credit.

The development of tax credits was not discussed with the Ministry of Revenue, and was not proposed during the public consultations or during the subsequent meetings of the Panel. Consequently, the Panel is not in a position to make a specific recommendation on this issue.

Mobility of HSA Staff

During the review, the boards and staff of two health and safety system organizations alerted the Chair to the absence of pension plan coverage for managers and staff in two of the six HSA's. They made the case that this was anomalous and that it also inhibited job mobility in the health and safety system. This matter was not directly within the scope of this review and was not fully discussed or examined. It is suggested that this is a matter that is better reviewed by the current or new executive with responsibility for Prevention.

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