Alone at last! With Americans off for Memorial Day, we’re free to discuss Canadian issues and Canadian issues alone. And that’s just what we’ll do. This SafetyXChange Special Report on OHS enforcement across Canada is divided into 2 parts:

• Part 1 looks at the legislative backdrop—specifically, maximum OHS fines across the nation;
• Part 2 examines the current state of enforcement and concentrates on a pair of disturbing reports out of Alberta and the federal jurisdiction.

BACKGROUND AND CONTEXT

In the U.S., federal OSHA law supercedes state law (although states can get permission to adopt more stringent requirements a la Cal-OSHA). In Canada, each province and territory is free to adopt its own OHS laws and penalties. The federal jurisdiction is essentially just another province.

Federalism is a beautiful thing. But it can also make life confusing. Although the laws overlap, Canadian OHS regulation differs in terms of both regulatory requirements and in the manner those requirements are enforced on the ground.

PART 1: MAXIMUM FINES

One result of these jurisdictional differences in OHS laws is that identical infractions carry significantly different potential penalties depending on where in Canada they’re committed.

Example: A construction worker falls from a roof and suffers serious injuries. Investigators determine that he wasn’t equipped with proper fall protection equipment as required by the OHS regulations.

If the violation occurred in BC, the company would face a maximum fine of $618,730.69, or $1,237,461.35 if it’s a repeat offence. In Quebec, that very same violation carries a potential maximum fine of $50,000. 

The Manitoba Maximum Melee

Violate an OHS law in Manitoba and you run the risk of a $150,000 fine, plus another $25,000 per day that the offence continues. If it’s a repeat offence, the maximum fine doubles to $300,000. Recent efforts to increase maximum OHS fines in the province have come up against stiff and unexpected political resistance.  

Compared to other parts of Canada, Manitoba’s $150,000 maximum fine is on the low end.  BC is at the top of the scale and Quebec at the bottom. $250,000 is the maximum OHS fine in 5 provinces—NB, NL, NS, ON and PE. Here’s a province by province breakdown.  

MAXIMUM OHS FINES

PART 2: CURRENT ENFORCEMENT TRENDS

On New Year’s Day, 4 Ontario construction workers were killed in a scaffolding accident. The incident garnered national attention and seemed to underline a report in last year’s Globe and Mail criticizing the Ontario government for underreporting OHS violations and granting workers’ comp discounts to companies with lousy safety records. The government responded by appointing a commission to investigate the current state of OHS enforcement in Ontario.

The latest episode is the firestorm of protest triggered by suggestions that the government is prepared to turn over OHS enforcement to the private sector. The government has since issued denials of any plans to privatize.

The irony of the controversy is that it’s taking place in Ontario, the province that has historically had the most active OHS enforcement. The aggressive inspection, prosecution and six-figure fines for OHS violations taking place in most of Canada today have been the norm in Ontario for years. A couple of years ago, the Ontario Ministry of Labour added over 100 new inspectors and initiated aggressive enforcement programs like the “Blitzes.” And just the other day, Ontario handed out over $1 million in fines against a single company—Ford Canada.

In the past 4 years, other provinces have followed Ontario’s lead and stepped up OHS enforcement. At least, many of them have. Last month, OHS enforcement—or the lack thereof—became a political issue in other parts of Canada.

ALBERTA & THE UNDERREPORTING OF INJURIES

At the end of April, the Alberta government announced that workplace injury rates in the province hit a record low in 2009:

• The rate of disabling injury claims dropped from 3.63 to 3.09 per 100 full-time jobs;
•  Lost-time claim rates fell 10% to 1.69 per 100 and were down in all sectors with the biggest drops occurring in manufacturing, mining and petroleum; and
• Fatalities decreased from 166 to 110, a rate decline of 28.5% to 71 per million full-time jobs.

(Click here for more statistics.)

It sounds like great news. But assuming the numbers are true—and there’s no reason to doubt they are—they’re deceptive. Alberta isn’t becoming a safer place to work. The government is simply spinning the numbers to make it look that way. Sadly, it’s the same game that other provinces and OSHA in the U.S. has been playing for years.

What Alberta Omitted to Mention

Buried within the Alberta Employment and Immigration press release is a short sentence stating that the province experienced 8% unemployment in 2009. What the release doesn`t say is that the loss of jobs was highest among the most dangerous industries, including sectors mentioned as experiencing the sharpest decline in lost-time claim rates:

• 35,000 jobs lost in manufacturing;
• 30,000 in oil and gas; and
• 20,000 in construction.

I recognize that we’re talking about injury rates, not totals. But it’s been well documented that high unemployment chills accident reporting. (Click here for an OHS Insider story citing studies demonstrating this.) Quite simply, workers are much less likely to report accidents and injuries when jobs are scarce.

The other key piece of information that Alberta Employment and Immigration failed to mention is the recent Auditor General report blasting the province for its lax enforcement of OHS laws. (Click here for the report—the workplace safety section begins on page 36.)

INADEQUACY OF FEDERAL OHS ENFORCEMENT

Perhaps even more disturbing is the April 27 report from the Canadian Centre for Policy Alternatives (CCPA) suggesting that while provinces are stepping up efforts to cut workplace injuries, the federal government is moving in the opposite direction.

The Disparity between Federal and Provincially Regulated Workplaces

The rate of disabling injuries suffered at provincially regulated workplaces has declined an average of 25% in the past 5 years, according to the CCPA. Over that same period, disabling injuries in federally-regulated workplaces actually increased 5%.

Of all the sectors regulated by the federal HRSDC, Canada Post is taking the biggest beating with a Disabling Injury and Illness Rate (DIIR) of 7.42 per 100 Full Time Equivalent (FTE) employees in 2007. Canada Post’s DIIR has climbed steadily from its 2002 low of 6.34%.

Trucking is also getting hammered. And HRSDC enforcement on First Nations reserves is practically nonexistent, says the report.

Why Federal Workplaces Are Getting Less Safe

What’s going on?

The CCPA report suggests that the increase in injury rates at federal workplaces is “that there are simply too few [HRSDC inspectors] to do the job.” While many provinces have added inspectors, in the federal sector, the ratio of inspector per worker has fallen in the past 4 years. (See the chart below). In 2007, there were 128 inspectors responsible for policing roughly 8% of Canada’s workforce—a ratio of 1 inspector per 8,057 workers!

HRSDC INSPECTOR RATIO

Source: Table 2 of CCPA study cited above, page 10

Federal inspectors are dispersed geographically which compromises their effectiveness. HRSDC inspectors are also underpaid vis-à-vis their colleagues in the provinces. 91% of safety professionals make more than the best paid HRSDC inspectors, according to the report.

Adding to the problem is HRSDC’s lack of support for its inspectors on the ground. Efforts by inspectors to enforce OHS regulations aggressively and proactively have been stonewalled.

Inspectors interviewed for the study expressed concern about the “malaise in enforcement attitudes” among HRSDC management and cited political interference and “an overarching push to shift responsibility for occupational health and safety” from government to the employer. In essence, the HRSDC is increasingly relying on employers to regulate themselves. And the rise in illness and injury rates suggests that the approach isn’t working.

Conclusion

In any federal system, the national government should play a leading role in policy creation and implementation. Being at the center of national power carries with it the obligation to set the example for the folks “in the hinterlands.” But in Canada, it’s the provinces that are leading the effort to make workplaces safer.

Good for them! And bad for the feds! It’s high time for the HRSDC to get its house in order and if not lead then at least get out of the way.

Story Tools:  E-mail this to a friend  Print This Post Top