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  • 1. WHAT TO DO WHEN THEREGULATOR COMES A-KNOCKING David Crocker
  • 2. INSPECTIONS v. INVESTIGATIONS:
  • 3. Section 54 of the Occupational Health and Safety Act(“OHSA”) provides Provincial Officers with broadinspection powers.
  • 4. For an investigation, however, there are constitutionalprotections which limit what an Officer can do.
  • 5. Section 8 of Charter protects against unreasonablesearch and seizure.
  • 6. You must know, therefore, the difference between aninspection and an investigation to assert your rights.
  • 7. INSPECTION:• To determine compliance with OHSA or its Regulations
  • 8. INVESTIGATION:Old Test: If Officer has reasonable and probable grounds to believe an offence has been committedNew Test: Whether the predominant purpose of the Officer’s attendance is to gather evidence to determine penal liability, establishing an adversarial relationship
  • 9. Provincial Officers with the Ministry of Labour areauthorized to conduct both workplace inspections andworkplace investigations.
  • 10. They often start with an inspection which evolves intoan investigation.This means you have to be on your toes if you want totake advantage of your Charter Rights.
  • 11. HOW TO PREPARE FOR THE REGULATOR:• Have Standard Operating Procedures (“SOP”)• Know how to contact the Management Team• Have a telephone tree or other contact system – and continuously update it• Train everyone on SOP and their use
  • 12. GREETING THE REGULATOR:• Probably most important stage of visit• Your chance to assert some control over the process • Always have someone on-site trained to deal with the Regulator • Train security/reception to take routine information from the investigator: • name, badge number, if applicable, get a card, have him/her sign in • Have him/her wait until you are ready
  • 13. HE/SHE SHOULD:• Remain calm• Be courteous – never antagonize• Be assertive – never aggressive• Ask investigator to wait for the Trained Management Representative to meet him/her
  • 14. THE TRAINED MANAGEMENT REPRESENTATIVESHOULD ASK THE INVESTIGATOR:• What’s the purpose of your attendance?• Is this an inspection or an investigation? • If it’s an investigation: • what’s the potential offence/infraction? • is it just the company or employees too?
  • 15. ASK IF HE HAS A WARRANT:• Advise that you want to make two telephone calls • To your lawyer • To the Senior Person on the telephone tree
  • 16. IF HE HAS A WARRANT:• Read it carefully to counsel• It restricts what the Officer needs to do WHILE THIS IS GOING ON, KEEP THE INVESTIGATOR IN A BOARD/MEETING ROOM
  • 17. THE INVESTIGATION:• Make sure there is at least one Management Representative always with the Investigator• Take notes• Use regular safety protocols• Make a list of documents taken or photos taken• If there is any question about whether a specific document should be taken, consult counsel
  • 18. BEFORE OFFICER LEAVES:• Ask him/her to sign your notes• Decline any request to sign a statementREMEMBER:• Anything said can be used to support their case• Do not mistake apparent friendliness for anything real
  • 19. DAY-TO-DAY PREPAREDNESS:• Keep all desks clear of paper that is not presently being used• Keep all file cabinets and other storage areas closed• Keep all common areas – e.g. kitchens, waiting/meeting rooms free of any “work related” papers or documents
  • 20. SOP:• So everybody knows the drillRECORD KEEPING:• Records should always be kept• Will help to establish due diligence, if necessary