3. Section 54 of the Occupational Health and Safety Act
(“OHSA”) provides Provincial Officers with broad
inspection powers.
4. For an investigation, however, there are constitutional
protections which limit what an Officer can do.
5. Section 8 of Charter protects against unreasonable
search and seizure.
6. You must know, therefore, the difference between an
inspection 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 committed
New 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 are
authorized to conduct both workplace inspections and
workplace investigations.
10. They often start with an inspection which evolves into
an investigation.
This means you have to be on your toes if you want to
take 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 REPRESENTATIVE
SHOULD 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 statement
REMEMBER:
• 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 drill
RECORD KEEPING:
• Records should always be kept
• Will help to establish due diligence, if necessary
