Safety Focus 2011: Do the safety dance

2011 safetyA brave new world in safety compliance?

By Dennis Furlan

On Christmas Eve, 2009, four men fell to their deaths while working on a scaffold situated outside the 13th floor of a Toronto apartment building. It was one of those tragedies the repercussions of which won’t be forgotten soon. One of those repercussions was the Ontario government’s establishment of a commission to produce a report outlining any needed changes in safety regulation. The report was released in December of 2010, and it might well provide a glimpse into the brave new world of health and safety regulation across all of Canada.

Ontario Premier Dalton McGuinty’s Liberal provincial government appointed former civil servant Tony Dean to lead the Expert Advisory Panel on Occupational Health and Safety. The panel produced a report that outlined 46 sweeping recommendations in the wake of the Christmas Eve tragedy. Among those recommendations are the establishment of a chief prevention officer reporting directly to the minister of labour, mandatory training for workplace health and safety representatives, new and tougher monetary policies for those who place workers at risk, and enforcement for workplaces in the underground economy.
It should be noted that the panel’s report is just that: a report. It is now up to the McGuinty government to decide what to do with the report’s recommendations. Given that 2011 is an election year in Ontario, it is unclear just what results the report will ultimately produce, and what kind of legislation might be passed in its aftermath. However, the potential impact of the Dean report should not be underestimated — for both the province and the country as a whole. Its recommendations in part come from an analysis of safety standards around the world, and could leave a mark on Canada’s safety compliance regimen for generations.
If the Dean report’s recommendations are carried out to any significant degree, the result could well be higher safety compliance costs for all businesses, including small- to medium-sized manufacturing facilities. This is certainly what Norm Keith, employment and labour lawyer at the Gowlings law firm office in Toronto, thinks will result from Ontario’s approach to health and safety in the workplace. Keith says, “The cost of compliance would go up. The cost of training would go up. The risk and the cost of non-compliance will dramatically go up. So, you’re going to have to pay more, and your exposure is higher if you don’t get it all right and somebody gets hurt.”
Keith believes that implementation of the Dean report would essentially make a bad situation even worse. According to Keith, the root of the problem, both in Ontario and the rest of the country, is an approach to health and safety that is dominated by a certain philosophy toward labour and safety. In fact, Keith points to the advisory panel’s makeup as evidence of this approach. He says, “I wouldn’t say that the panel was stacked in any particular direction, but I would say that they were very thin on real health and safety expertise. Basically, they were a bunch of academics and union leaders, with a few token people from smaller industry groups thrown into the mix.”
For the record, the advisory panel consisted of nine members. According to the Ontario Ministry of Labour, three of the members were academics, three were categorized as employers, and three were from labour. So, in essence, two-thirds of the panel consisted of the type of constituencies that Keith was referring to, while one-third came from actual business. It’s a mix that Keith believes is typical when it comes to health and safety regulation in Canada, and will prove even more costly if allowed to continue with any Dean report recommendations. Keith says, the on-going increase in regulation and administration has created a concern for the reliability of the entire health and safety system. “When there’s a problem, the attitude is to just blame the employer,” Keith says, “and to prosecute the employer, and that’s what I disagree with.”
Almost right on cue, labour organizations such as the Ontario Public Service Employees Union (OPSEU) were quick to support the recommendations of the Dean report. Upon the release of the report, a new Ontario labour minister, Charles Sousa, vowed to continue with his government’s direction on the file. According to a statement released upon his appointment, the minister said, “I had an opportunity today to speak with Tony Dean about his report. I reconfirmed the government’s commitment to address his recommendations.” In other words, it appears to be steady-as-she goes as Ontario continues its path towards more health and safety regulation.
One of the Dean report’s recommendations that could have an enormous impact on how business must deal with safety compliance is the implementation of administrative monetary penalties (AMPs). AMPs are essentially a fancy way of saying that regulators would be in charge of financially penalizing any violators instead of the courts. The advantage of AMPs is that they make it easier and more cost-efficient for governments in dealing with safety enforcement. Their disadvantage is that, in effect, they do away with protections such as presumption of innocence and due process that are a part of the court system.
It is this aspect of the Dean report that Keith finds so ominous. According to Keith, “It takes it away from the courts and gives all the power to the field inspectors to impose not only orders but serious penalties. Yes, there would likely be the right to appeal on the part of the employer, but the full onus of proof would be on the employer, as opposed to how it is now, which is that the onus of proof of contravention is still with the Ministry of Labour, as it is with any strict liability prosecution. That’s a huge change. So, there will be more monetary penalties — not fines — and more time and money will be spent by employers who have to fight the Ministry of Labour.”
In order to restore some sanity in what he considers a health and safety regimen run amok, Keith believes there are two basic changes that are needed. First, he says, “I would instruct the field inspectors to spend much more of their time helping employers to improve workplace health and safety rather than simply writing orders and prosecuting employers. So, there needs to be much more government resources put through the inspectorate for the purpose of prevention.”
Keith’s second recommendation is to do some of what’s already happening now, but to do it more. Specifically, Keith points to Quebec, where mandatory minimum training of all workers has been implemented. He would like to see something similar nationwide. Keith also points to the Workplace Hazardous Materials Information System (WHMIS), which is Canada’s national hazard communication standard. Keith says, “WHMIS deals with a very narrow area, but having something like it for a much broader health and safety approach nationally is certainly much better than the current situation, which is to wait until an accident happens, and then blame the employer.”
Will the Dean report in Ontario mark the beginning of a brave new world of ever-increasing health and safety regulation in the country? It’s a hard question to answer, and only time and circumstances will ultimately tell. It certainly reflects an approach to health and safety that has been common in Ontario for years, and found elsewhere in the country. Whether or not it has served the interests of employers, or protected their employees, is a matter for continued debate. So is the question of whether the road we’re heading down will do anything to restore confidence and faith in our health and safety system.
Dennis Furlan is an Ontario-based freelance writer.

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