Workplace Safety Hazards

Workplaces in Ontario (and throughout Canada) are governed by a series of laws that aim to reduce the frequency and impact of workplace injuries. The Workplace Safety and Insurance Act S.O. 1997, c. 16, Sch. A., (also known as 'Worker's Compensation') creates a no-fault insurance plan that provides benefits to people injured in the workplace. The Occupational Health and Safety Act sets standards of workplace safety and a structure for investigating and punishing breaches of safety standards. Finally, recent amendments to the Criminal Code have exposed anyone who has the authority to direct work to personal criminal liability for injuries arising out of that work.

Workers' Compensation

The workers' compensation system has been in place since 1915. It is a "no-fault" insurance scheme, which means that insured workers give up the right to sue for their injuries, but gain guaranteed compensation for proven claims. The 'no-fault' system also means that an injured worker receives compensation even if the accident which caused the injury was their fault: only cases of serious and wilful misconduct are exempted from coverage and even these are covered when they result in serious impairment or death. Just like with car insurance, dangerous industries pay higher premiums than safe ones, so the system not only ensures that almost all workers are protected, but also encourages employers and industries to work to reduce the rate of accidents.

Under the Act, a worker is anyone under a contract of employment, and this includes apprentices and others that might normally be considered students or volunteers. People who are independent contractors, who are self-employed, or whose employment is on a casual basis are generally not insured workers under the Act, however, it is possible for such workers to apply to the Workplace Safety and Insurance Board (WSIB) for insured status.

Worker's compensation is available for injuries suffered by accident arising in the course of employment, including chronic pain and environment-related diseases, but mental stress is not generally insurable. Employers must provide the WSIB with notice of an accident leading to loss of work, and must pay the worker for that day's wages and for transportation to a hospital if required.

The worker must submit a claim within 6 months of an accident. Workers are entitled to any health care that is 'necessary, appropriate, and sufficient' and also to payment for loss of income equalling 85% of the worker's insurable income. The employer must continue making benefit plan contributions on the employee's behalf for one year, regardless of whether that employee returns to work. The worker must return to work when they are able, and the employer must re-employ the worker if they return to work within one year.

Almost all disputes arising under the Act fall within the jurisdiction of the Board. Appeals from most Board decisions may be made to the Appeals Tribunal. Both bodies are quasi-judicial bodies that decide a case on its merits, but they are not bound by precedent.

Occupational Health and Safety

The safety of workplaces is governed by the Occupational Health and Safety Act, R.S.O. 1990, c. O-1.

The Act obligates employers to keep the workplace safe by ensuring that all required equipment and protective devices are provided and properly maintained; that required safety and emergency procedures are in place and followed; that equipment and materials are properly used; and that workers receive sufficient information, instruction, and supervision to carry out their jobs safely. They must also be trained in the proper use of any hazardous materials in the workplace ("WHMIS" training). Employers must alert workers to any known hazards, and prepare reports on workplace health and safety annually. Copies of the Act and the company's health and safety policy must both be posted in conspicuous locations.

Workers must work in compliance with the Act and must not operate any equipment in a manner that is unsafe. In particular, workers must wear the prescribed safety equipment and must not interfere with the intended operation of safety devices in the workplace. Importantly, every worker has the right to refuse dangerous work. Such a refusal must immediately be reported, and the cause of the danger inspected. Employers may not discipline or threaten in any way an employee for exercising this right to refuse work, or any other right or obligation under the Act.

Inspectors appointed under the act have rights to conduct investigations and seize evidence with respect to breaches of the Act. Such breaches are offences subject to a maximum fine of $25,000 and imprisonment for not more than one year or, in the case of corporations, a fine not exceeding $500,000.

Criminal Code

Responding largely to the Westray Mine disaster, Parliament recently amended the Criminal Code,, R.S. 1985, c. C-46, to provide for personal criminal liability for occupational health and safety. Section 217 now imposes a duty on any person who has the authority to direct how work is performed to take all reasonable measures to prevent bodily injury arising from that work. Where, in failing to meet this new duty, someone shows wanton and reckless disregard for the safety of others, they can be found guilty of criminal negligence, and may be subject to imprisonment for up to ten years. Where the negligence causes death, the maximum sentence is life imprisonment. These new provisions have yet to be seriously tested, however, and so their true impact remains to be seen.

Soma Ray-Ellis, practises in the Employment and Labour Group at Paterson, MacDougall LLP in Toronto and can be reached by e-mail at soma.ray-ellis@pmlaw.com.