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Does my WSIB Consultant have to be a paralegal? |
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Yes! Ontario's Workplace Safety and Insurance Board ("WSIB") has announced that as of November 1, 2007, worker and employer representatives will be required to provide the WSIB with confirmation of their licensing status as paralegals for all matters such as employer firm files and worker claim files.
The provision of WSIB representation falls under the Law Society of Upper Canada's definition of the provision of legal services. Effective November 1, 2007, persons providing legal services must have obtained errors and omissions insurance, and applied to the Law Society to become licensed as paralegals.
There are some exceptions to this rule. People who fall into the exception include members of trade unions who provide WSIB services as union representatives, people who represent their own employers, people who represent friends or family on an occasional basis, and certain members of professional organizations who only provide occasional legal services. For more information on who may be exempt from licensing, please refer to the Law Society of Upper Canada website at www.lsuc.on.ca.
If you are looking for a WSIB Consultant, find out if they are registered in order to protect yourself. For further information, please contact David Marchione at 1-866-862-5787 ext. 84378 or david.marchione@gowlings.com. |
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Can a constructor delegate its authority and responsibility under Ontario’s OHSA by contract? |
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No. If a general contractor or owner is a constructor, as defined under Ontario's OHSA, it cannot delegate its legal responsibility by contract. No party with duties under the OHSA can contract out their legal duties. |
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Does a federally regulated organization require a workplace health and safety committee with certified members? |
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The short answer is no. “Certification” training is not mandatory in a federal OHS Committee, but health and safety training is still necessary. Employers that are federally regulated are governed by the Canada Labour Code, Part II, (the “Code”) with respect to health and safety matters. According to the Code, employers must establish a workplace health and safety committee if they normally employ 20 or more employees. A policy health and safety committee is also required when 300 or more employees are employed. A health and safety representative is also mandatory for workplaces with less than 20 employees.
There is no mandatory, approved “certification” training that must be taken, as is the case for provincially regulated committees in Ontario. However, the Code does require employers to provide their committee members or health and safety representatives with training in health and safety and inform them of their responsibilities. We suggest also including in the training principles of hazard identification, assessment and control, how to conduct effective investigations and inspections and how to make proactive recommendations to improve health and safety in the workplace.
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Can employers be prosecuted for failure to have an effective Emergency Response Plan? |
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Yes. OHS general clauses and specific regulations may be breached if an employer does not have an Emergency Plan.
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Does the Occupational Health and Safety Act apply to me if I hire a contractor to do work on my home (i.e. replace my roof)? |
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No. The OHSA does not apply to an individual's private residence (s. 3(1)).
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Can an employer compel a worker to act as a rescuer for a confined space emergency in which they may need to enter the space to rescue a worker in an emergency situation? |
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In my opinion, an employer may compel a worker to be a rescuer if both of the following conditions are met:
1) The role of a confined space rescuer is within the worker's job description, and
2) Adequate training is provided to the individual.
However, what may be legal is not always best practice. Therefore, I recommend that an employer ask for volunteers to be rescuers and train them accordingly for their confined space program. |
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Does a Search Warrant issued under OHS legislation authorize an inspector to enter a workplace and interview employees and corporate representatives? |
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No. A Search Warrant only authorizes the search and seizure of physical evidence such as documents, samples, equipment, or machinery. A Search Warrant cannot be used to require employees and representatives of an organization to answer questions or submit to an interview. All employees and representatives should be aware that they are not obligated to speak to the authorities during the execution of a warrant, however, if they voluntarily choose to do so, then anything they say can be used against them or their organization in a court of law. |
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I thought the new Confined Space Regulations applied to all workplaces in Ontario starting on September 30, 2006, but your article about Confined Space Regulations in OHS Canada which states that it doesn’t apply diving operations, farms, or to workplaces governed by the four sector regulations. I’m confused, please help! |
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The Ministry of Labour (“MOL”) originally intended to introduce one Confined Space Regulation that would apply to all industries. However, following submissions from various parties pointing out some specific differences between the industry sectors, the MOL chose to amend the confined space requirements in the existing sector regulations and to introduce a new Confined Space Regulation 632/05, which extends coverage to workplaces not governed under those regulations. Therefore, if your workplace is already governed by a sector regulation, you will be required to comply with the amended sections of that regulation as of September 30, 2006. For example, if your workplace is a factory, you will be required to comply with Part I.1, section s 119.1 to 119.20 of the Industrial Establishments Regulations 851. |
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Can a general contractor avoid becoming a “constructor” under the Occupational Health and Safety Act (“OHSA”) by contracting out its legal status and duties? |
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No! A constructor or any other party that has legal duties under the OHSA cannot contract out of those duties. A constructor has overall project responsibility for compliance with the OHSA and is responsible for ensuring the health and safety of all workers, including workers directly employed by its contractors. Duties of a constructor are set out in section 23 of the OHSA, which requires a constructor to ensure compliance with the OHSA on a project undertaken by the constructor, including compliance by its contractors and subcontractors and their direct employees. |
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