Health and safety enforcement in mining operations
By Madeleine Loewenberg, Associate – Norton Rose Fulbright
The Occupational Health and Safety Act (OHSA) imposes a number of obligations on mine owners, operators, managers and supervisors, as well as officers and directors of mining companies. Being unaware of those obligations may result in prosecution by the Ontario Ministry of Labour (MOL).
General and Specific Obligations
The OHSA imposes general and specific duties on various workplace parties (including those in the mining industry) in the performance of work. For example, the legislation requires employers and supervisors to take “every precaution reasonable in the circumstances for the protection of a worker”. Among the general obligations imposed on workers is the duty to “work in compliance with the provisions of [the] Act and the regulations”. Officers and directors of a company must take “all reasonable care” to ensure that the company complies with the legislation, any orders or requirements written by MOL inspectors or directors, and any orders written by the Minister of Labour.
In addition to the general duties that are imposed, the OHSA contains specific provisions applying to surface and underground mines and mining plants. More specific provisions, such as those contained in Ontario Regulation 854, Mines and Mining Plants (Regulation 854) are comprehensive and far-reaching. Regulation 854 regulates, among other matters relating to health and safety, the minimum age of workers in a mine and the number of hours that mine employees are permitted to work, required training programs, fire protection obligations, the manner by which haulage is to be carried out, the storage and use of explosives in a mine, the use of haulageways and landing cages, and the installation of electrical equipment. Two provisions of Regulation 854 provide an illustration of the reach and scope of these obligations.
112. A haulageway used by motor vehicles, other than motor vehicles running on rails, shall,
(a) except where pedestrian traffic is effectively prevented, be at least 1.5 metres wider than the maximum width of a motor vehicle using the haulageway; and
(b) where it is regularly used by pedestrians and it is less than two metres wider than the maximum width of a motor vehicle using the haulageway, have safety stations as prescribed in section 114 at intervals not exceeding thirty metres.
212(1) Chairs used for landing a cage shall be,
(a) arranged to fall clear and remain clear of the shaft compartment when the cage is lifted off the chairs;
(b) operable only from outside the cage; and
(c) so arranged as not to distort the cage.
212(2) Chairs fastened to shaft station posts shall be of a chain type.
The MOL requires that mine operators make themselves aware of the hazards inherent in mining operations and mineral exploration and of the general and specific obligations placed upon them by the OHSA. Mine operators will also be expected to take all reasonable precautions to avoid breaches of the legislation and to ensure the health and safety of those working in and around the mine.
“All Reasonable Precautions”
Taking all reasonable precautions to prevent injuries or accidents imposes a high degree of responsibility on the workplace parties to proactively identify and address potential workplace hazards. General diligence with respect to health and safety matters, or reacting to health and safety incidents after they occur, will not suffice. The expectation of the MOL will be that a careful analysis of the specific hazards that may arise in the performance of work has been conducted; that measures were put into place to reduce or eliminate the hazards identified; that workers were properly trained and supervised with respect to the potential hazards; that the health and safety program in place addressed the hazards identified; that corrective measures were implemented to correct or remediate unsafe actions or workplace conditions; and, where a specific measure is set out in the applicable health and safety legislation, that it is being followed.
For an employer, at a minimum, it will be necessary to prove the existence of a written health and safety program that addresses the hazards inherent in the work, and that the program was strictly adhered to. Among the other factors considered by a court in considering a due diligence defence are foreseeability of risk, training, supervision, and the employer’s general attitude about health and safety.
The MOL enforces the OHSA by a number of methods. One such method is the use of “blitzes” pursuant to the province’s Safe at Work Ontario compliance initiative. This initiative has seen monthly, targeted inspections of workplaces in key economic sectors of the province since June 2008. Targeted inspections of mines and mining plants occurred in July and August, 2013. Another series of inspections related to ‘ground control’ is taking place this month. A further series of inspections related to ‘locking and tagging in mine hoisting plants’ will take place in January and February, 2014.
In addition, the OHSA provides inspectors employed by the MOL with broad powers to inspect provincially regulated workplaces for compliance with the legislation. These powers may be exercised at any time, whether or not pursuant to a blitz, an anonymous complaint, or in response to a workplace accident. The powers of an MOL inspector include the ability to:
1 Enter any workplace at any time without prior notice or a search warrant;
2 Take any machine, device, article or thing from the workplace;
3 Require the production of any written documents or drawings;
4 Take copies of any written document or drawings;
5 Test machinery and equipment or to require the employer to pay for an expert to test machinery or equipment; and
6 Conduct private interviews of workers and others in the workplace without the right to legal counsel.
Written Orders directing the employer (among others) to remedy unsafe conditions observed by the MOL are likely to follow an inspection. Whether or not the Order is satisfactorily complied with, the MOL may institute a quasi-criminal prosecution in relation to the issues raised by the Order.
The most severe method of enforcement is prosecution. To be found to have failed to comply with the OHSA after a trial can result in severe penalties against an individual or a corporation. Individuals convicted of an offence under the OHSA are subject to maximum fines of up to $25,000 and/or 12 months in prison for each charge upon which a conviction is registered. A corporate accused faces a maximum fine of up to $500,000 for each charge upon which a conviction is registered. Any monetary penalty of more than $1,000 is subject to a 25 per cent victim fine surcharge. It is therefore exceedingly important to be aware of the statutory obligations imposed by the OHSA and, for mine operators, Regulation 854.
Now, more than ever, owners and operators of mines and mining plants must make themselves aware of the duties and responsibilities that may apply to their operations and to retain qualified and experienced consultants to ensure compliance with the OHSA.
About the Author
Madeleine Loewenberg practises all aspects of employment and labour law on behalf of employers in Ontario. Ms. Loewenberg has extensive experience representing clients involved in occupational health and safety, employment standards, wrongful dismissal, human rights, workplace safety and insurance board, grievance arbitration, and labour board proceedings. During the course of her practice, she has appeared on litigation matters before a number of Ontario courts, tribunals, boards of arbitration and arbitrators on behalf of clients.
Ms. Loewenberg often assists clients in developing and implementing proactive workplace policies and initiatives designed to avoid conflict in the workplace, minimize employer liabilities and comply with health and safety, human rights and employment standards legislation.
In addition, she has written and spoken extensively on issues related to the workplace, having been published and quoted in the Law Times, Canadian Employment Law Today, the Workplace News, the Canadian HR Reporter, the Canadian Safety Reporter and the Mercer CCH Reports.
Associate, Norton Rose Fulbright
Toronto (Royal Bank Plaza), Canada