Section 54 of the Occupational Health and Safety Act(“OHSA”) provides Provincial Officers with broadinspection powers.
For an investigation, however, there are constitutionalprotections which limit what an Officer can do.
Section 8 of Charter protects against unreasonablesearch and seizure.
You must know, therefore, the difference between aninspection and an investigation to assert your rights.
INSPECTION:• To determine compliance with OHSA or its Regulations
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
Provincial Officers with the Ministry of Labour areauthorized to conduct both workplace inspections andworkplace investigations.
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.
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
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
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
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?
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
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
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
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
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
SOP:• So everybody knows the drillRECORD KEEPING:• Records should always be kept• Will help to establish due diligence, if necessary