Mining operators in Ontario face safety compliance blitz

Ontario mine operators may get a surprise visit from the Ministry of Labour this month and into the fall as enforcement efforts ramp up as part of the province’s Safe at Work compliance initiative.

While work in the industry can be potentially very dangerous, mining companies typically have well-developed safety programs, says Kevin MacNeill, partner with Heenan Blaikie LLP in Toronto.

“This is just the mining industry’s turn,” says MacNeill, who notes the ministry targets various sectors on an ongoing basis. “They may have a perception there are some issues, but in my experience mining companies tend to have pretty sophisticated health and safety programs given the inherently dangerous nature of the work."

The blitz is taking place through the month of August with two further inspection periods scheduled for the mining sector: one targeting ground control in October 2013 and a second on locking and tagging in mine hoisting plants in January and February 2014.

The purpose of the safety inspections is to reinforce the internal responsibility system in Ontario mines.

During the blitz, the ministry will check the following:
• Employers have posted a health and safety policy in the workplace that has been reviewed annually.
• Employers have a program in place to implement the health and safety policy.
• Workers are aware of the health and safety policy and a properly functioning joint health and safety committee or health and safety representative is in place where required.

Inspectors can issue compliance orders and stop-work orders if they find companies are in violation of the Occupational Health and Safety Act.

General counsel often participate when it comes to handling the safety-compliance strategy at a mining company, says Madeleine Loewenberg with Norton Rose Fulbright Canada LLP.

“We deal with them more often when something has gone wrong,” she says. “There are often health and safety supervisors and human resource employees developing the programs.”

Loewenberg says the inspections reflect a “pattern of concern for mine safety in Ontario” as the ministry has conducted two mining blitzes a year for the last five years.

Failure to comply with the act can mean stiff penalties. An individual convicted of an offence can be fined up to $25,000 and imprisoned for up to 12 months.

The maximum fine for a corporation convicted of an offence is $500,000. Any monetary penalty of more than $1,000 is subject to a 25-per-cent victim fine surcharge. Penalties are also imposed for each violation for which a conviction is registered.

MacNeill says MOL inspectors have some discretion as to who gets charged but legal counsel for the ministry has further discretion as to who they pursue to trial once the charges have been laid.

“The exercise of that discretion may yield different results in different situations,” says MacNeill. “So you may have situations where one views a careless worker as being entirely at fault. The worker may have failed to follow expected safety rules but the employer can also be at fault,” he says.

Loewenberg says the inspector can make recommendations on charges and they will either be approved or amended by a supervisor of the inspector.

“Ultimately the legal services branch at the Ministry of Labour would have final authority whether or not a particular charge is laid,” she says.

The actions of an employee may result in liability flowing to an employer or an owner or a constructor because those actions may cause the ministry to determine there has been a failure in the heath and safety system in place at that particular mine site.

But it is rare that workers are charged and that is where the chain of responsibility kicks in.

“If a careless worker is injured, in my experience the ministry will not charge the worker but they will charge the employer and possibly the supervisor,” he says. “The reason for that is because the internal responsibility system has overlapping duties. Just because one workplace party is at fault it doesn’t necessarily relieve another workplace party of fault as well.”

In many cases the corporation is charged and sometimes the supervisor as well. However, a worker could be charged if it appears they were at fault and the employer was duly diligent.

While companies can review their safety policies in anticipation of a visit by an MOL inspector, at the end of the day MacNeill says due diligence by the corporation should be the first priority.

“They should be trying to be keeping their employees safe, period,” he says. “The law is an additional reason why they should be making sure their employees comply with safety norms.”

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