Occupational Health and Safety Act: An Introduction
A Workplace’s health and safety is governed by the Occupational Health and Safety Act, R.S.O. 1990 c.O.1 and several regulations. The employers are required to post a copy of this act at their workplace. This act outlines the different safety procedures to be followed in each industry such as mining, construction. However, s. 3 (2), (3) specifies the unregulated areas consisting of farming operations, teachers, and self-employed individuals. Additionally, the decisions regarding workplace health and safety are dependent upon determining the duties of each party involved and the extent of these duties. This act also addresses the safety hazards associated with toxic substances and operating machinery in the workplace. The safety hazards involved are briefly listed as follows:
1) Contacting moving parts leading to Muscleskeleton Disorder. Briefly, s 28 (2) of the act specifies the duties of the employees such as, reporting any hazard or defect in the equipment.
2) Contact with fire, electricity, and heat may lead to harmful radiation.
3) Contact with pressurized gasses and liquids expose health hazards for example, harmful chemicals.
Workplaces in Ontario require at least one health and safety representative in each non-managerial position for every or more employees, requiring him/her to conduct physical inspection at least once a month, and anytime a workplace accident occurs. However, this act mentions summary reports containing important information, such as the number of work, accidental fatalities, number of lost work day cases, non-fatal cases requiring medical aid, and the number of occupational illness cases, can be obtained from Workplace Safety and the Insurance Board. The workplace injuries are paid out by the insurance plans governed by the Workplace Safety and Insurance Act (WSIA). The Workplace Safety and Insurance Board (WSIB) have various functions, that mostly require the ability to provide no fault liability insurance, industry safety guidelines to employers, providing loss of earnings, and covers health care cost for the employees. All employers are required to have a no fault liability insurance for their workplace and employees within 10 days of hiring their full time and part time employees. The premiums for the no fault liability insurance coverages are dependent on businesses classified on the basis of health and safety risks, records of the business, and the size of the payroll.
Duties of Employers
Most importantly, s 25 (1) of the act outlines the duties of the employers, specifically one of them being ensuring the equipment, material and any operating device to be in a good condition. The diseases caused by the workplace health and safety hazards are often classified as “occupational disease”: The health and safety Ontario specifies the following accounts for most of the occupational diseases: contact with machinery, slipping or falling, and musculoskeletal disorder. The Workplace Safety and Prevention Services describes that eighty percent of injuries at workplaces are caused by slip and fall due to tripping, jobs requiring working on height, and unsuitable footwear. The employers are required to take reasonable precautions to ensure the safety of the workers and to potentially prevent any workplace injuries. The data suggests that informing the employees of the existing dangers as a significant mitigating factor in the workplace injuries.
Duties of Employees
Furthermore, the act also specifies the duties of employees while dealing with hazardous material in the workplace and filing claims with the WSIB. The employees are responsible for reporting any changes in income, health status and jobs affecting their WSIB benefits within 10 days. The workers are also required to ensure the accuracy of their data reported. Reporting a misleading event such as the level of impairment in receiving a WSIB benefit is considered an offence. Any individual found with any offence will be fined up to $25,000 and/or six months in jail. Some of the workplace hazards causing occupational diseases such as; Asthma, blood silicosis, and Dermatitis are as follows:
- Noise or vibration
- Extremely hot and cold temperatures or air pressures
- dust or gases
Most people would know Gabrielle Carteris as the actress who played Andrea Zuckerman in the television show “Beverly Hills, 90210.” She has spent most of the past decade playing minor roles and doing voice-overs in television series, and will now be entering the British Columbia courts as a plaintiff in a personal injury action.
Carteris was the lead female actor for the television series “Past Tense.” During a fight scene with actor Adrian Hughes on February 7, 2006 in Langley, B.C., Carteris claims to have suffered damages to her nerves as a result of prolonged choke positions over several hours.
A provisional application for workers’ compensation benefits was submitted on May 4, 2006, but was suspended when she did not elect to claim compensation. The employer’s report stated that Carteris was employed on a contractual basis.
Counsel for the applicants brought an application before the Workers’ Compensation Appeal Tribunal (WCAT) pursuant to s. 257 of the Workers Compensation Act,
Certification to court
257 (1) Where an action is commenced based on
(a) a disability caused by occupational disease,
(b) a personal injury, or
the court or a party to the action may request the appeal tribunal to make a determination under subsection (2) and to certify that determination to the court.
(2) For the purposes of subsection (1), the appeal tribunal may determine any matter that is relevant to the action and within the Board’s jurisdiction under this Act, including determining whether
(a) a person was, at the time the cause of action arose, a worker,
(b) the injury, disability or death of a worker arose out of, and in the course of, the worker’s employment,
(c) an employer or the employer’s servant or agent was, at the time the cause of action arose, employed by another employer, or
(d) an employer was, at the time the cause of action arose, engaged in an industry within the meaning of Part 1.
(3) This Part, except section 253 (4), applies to proceedings under this section as if the proceedings were an appeal under this Part.
WCAT has sole jurisdiction to determine whether a personal injury is work-related, and in B.C. the Workers Compensation Board, WorkSafeBC, has sole jurisdiction over injuries arising in the course of employment. More on the purpose of these determinations are described by WCAT here.
Carteris was employed by Gabco, her own loan-out company which she fully owned and directed. All of Gabco’s income was generated by Carteris’ acting services, and all of its expenses were associated with these same services. Neither Carteris or Gabco had private insurance or had registered for Workers’ Compensation.
The Board referenced the Assessment Manual, which states,
(c) Principals of corporations or similar entities
As the incorporated entity is considered the employer, a director, shareholder or other principal of the company who is active in the operation of the company is generally considered to be a worker under the Act….
If a sole, active principal of a limited company is injured at a time when the company was not registered as an employer with the Board, the principal will not be considered a worker at that time and a claim by the principal or his or her dependents will be denied.
The Board also looked at Practice Directive 1-1-3 (A), which provides a hierarchical analytical framework in distinguishing a worker and an independent operator. Carteris would often do work for multiple films simultaneously, meeting the definition of a “labour contractor.”
The Board determined that because Carteris had not registered with the Board she was acting as an independent operator rather than a worker and did not fall within Part 1 of the Act. Because her injuries arose outside the course of the employment within the scope of Part 1, she will now be able to proceed in her tort claim before the courts.