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Reasonable Limits on OHSA Investigations and Search Warrants

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Reasonable Limits on Investigations and Warrants under the Occupational Health and Safety Act, R.S.O. 1990.

*This paper is not legal advice.

Introduction

 

Regulators have a lot of power when acting within the scope of their jurisdiction.  The power comes along with the mandate to act for a specified purpose which often includes the “public interest” or some other identified valuable goal. Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ( both the Act and its Regulations are herein referred to collectively herein as “OHSA” or “Act”) is no different, either in its aspirations or in the broad scope of the powers it provides to the people who are tasked with ensuring its application.  The OHSA sets out its underlying purposes as powers and duties of the Minister of Labour in Section 4.1 of the OHSA as:

  1. To promote occupational health and safety and to promote the prevention of workplace injuries and occupational diseases.
  2. To promote public awareness of occupational health and safety.
  3. To educate employers, workers and other persons about occupational health and safety.
  4. To foster a commitment to occupational health and safety among employers, workers and others.
  5. To make grants, in such amounts and on such terms as the Minister considers advisable, to support occupational health and safety. 

 

The OHSA is remedial legislation.  It is primarily protective and preventive, rather than punitive.  This is apparent in that its goals include health promotion, injury prevention, education and the provision of financial support for initiatives in furtherance of the Act. There is nothing specific about denunciation in the Act, for example.  There are non-punitive compensatory provisions such as Section 30 which prescribes circumstances under which owners or constructors are liable for losses and damages if they fail to comply with their duty to prepare a list of designated substances at a work site.

In the OHSA “prevention” is sought through effective administration of the Act. This includes mandatory reporting obligations, codes of practice, protection of whistleblowers, health and safety committees, and the right to refuse to work. These, along with inspection and enforcement have a deterrent effect on those who would intentionally or unintentionally fail to comply with the Act.  As with other regulatory regimes, there are carrots and sticks built into the OHSA, which include:

This brief article focuses on the enforcement element of the OHSA, and in particular an examination of the search warrant provisions.  There are elements within these powerful search warrant provisions that are problematic. This may open investigations to challenge and expose enforcement proceedings to a successful application seeking the exclusion of evidence as having been obtained in violation of the Charteror even a stay of proceedings in some circumstances.

Inspection Powers

 

It is clear that a person who is designated under S. 6 of the OHSA as an inspector (“Inspector”) has expansive powers. Many of these are outlined in S. 54, including the authority to “remove… record(s)”, “conduct or take tests” and “make inquiries” and require the production of “records or information”  Notably for the purpose of this article, the Inspector may also “enter in or upon any workplace at any time without warrant or notice.

Workplace is broadly defined in the OHSA as “any land, premises, location or thing at, upon, in or near which a worker works.” The power to “enter” in S. 54 is limited to exclude a person’s dwelling.  It offers two alternate routes to entry, namely “consent of the occupier” or “the authority of a warrant”.  Warrants can be issued under the OHSA or the Provincial Offences Act, 2001, c. 26, s.1 (POA).

This article focuses on the OHSA and is intended to address situations in which an Inspector utilizes an OHSA or POA warrant to enter a workplace or a dwelling for the purpose of search and seizure.  This is related but separate from the topic of arrest warrants which are not addressed in this article. 

In some circumstances a workplace and a dwelling may be the same location if, for example, employees work out of the business owner’s home. There is, however, a meaningful and important distinction between workplace and dwelling for search and seizure law. For example, the two concepts do not overlap where a search warrant is obtained for a home office which was used for some purpose related to the business but which does not qualify as a “workplace” within the meaning of the Act.

 

Provincial Offences Act Search Warrants

 

This investigative power is set out in Sections 158 to 160 of the POA.  Section 158 sets out the test for issuance of a search warrant as follows:

 

158 (1) A justice may at any time issue a warrant under his or her hand if the justice is satisfied by information upon oath that there are reasonable grounds to believe that there is in any place,

 

(a) anything on or in respect of which an offence has been or is suspected to have been committed; or

(b) anything that there are reasonable grounds to believe will afford evidence as to the commission of an offence.

 

The POA includes a number of restrictions on search warrants such as a requirement that it must specify time window for execution that cannot be longer than 15 days and that it must be executed between 9 a.m. and 6 p.m. unless the issuing justice “otherwise authorizes”.  Additionally, it contains provisions to deal with the manner of execution and post-execution issues such as how seized property is to be dealt with and to address situations where solicitor-client privilege is claimed.

 

 

Occupational Health and Safety Act Warrants

 

The search warrant powers under the OHSA are understood through a reading of a number of areas of the Act.  For example, an OHSA search warrant is always assessed against the backdrop the numerous and broad investigatory powers that are already accorded to S. 6 “appointed” Inspectors under S. 54 of the Act “for the purposes of carrying out his or her duties and powers under this Act and the regulations…”

It is in the context of exercising those “duties” and “powers” where an Inspector seeks to enter a dwelling house that a specific warrant requirement is imposed:

S. 54(2) An inspector may only enter a dwelling or that part of a dwelling actually being used as a workplace with the consent of the occupier or under the authority of a warrant issued under this Act or the Provincial Offences Act.

 

The authority for “a warrant issued under this Act” is found in Section 56 as follows:

56 (1) On application without notice, a justice of the peace or a provincial judge may issue a warrant authorizing an inspector, subject to this section, to use any investigative technique or procedure or to do any thing described in the warrant if the justice of the peace or provincial judge, as the case may be, is satisfied by information under oath that there are reasonable grounds to believe that an offence against this Act or the regulations has been or is being committed and that information and other evidence concerning the offence will be obtained through the use of the technique or procedure or the doing of the thing.

 

The Inspector may be authorized in the warrant to be assisted by one or more persons who have “special, expert or professional knowledge”.

The OHSA also specifies what it describes as “Terms and Conditions of Warrant” in S. 56 (1.2) as:

(1.2) The warrant shall authorize the inspector to enter and search the place for which the warrant was issued and, without limiting the powers of the justice of the peace or the provincial judge under subsection (1), the warrant may, in respect of the alleged offence, authorize the inspector to,

 

(a)  seize or examine and copy any drawings, specifications, licence, document, record or report;

(b)  seize or examine any equipment, machine, device, article, thing, material or biological, chemical or physical agent;

(c)  require a person to produce any item described in clause (a) or (b);

(d)  conduct or take tests of any equipment, machine, device, article, thing, material or biological, chemical or physical agent, and take and carry away samples from the testing;

(e)  take measurements of and record by any means the physical circumstances of the workplace; and

(f)  make inquiries of any person either separate and apart from another person or in the presence of any other person.

 

A warrant issued pursuant to the OHSA “is valid for 30 days or such shorter period as may be specified in it.” Notably and importantly, the Act also provides that “the warrant may contain terms and conditions in addition to those (statutorily) provided for … as the justice of the peace or provincial judge… considers advisable in the circumstances”and that nothing in Section 56 “restricts any power or duty of an Inspector under this Act or the regulations…” This is a critically important feature of the entire OHSA investigatory regime.  The Inspector does not need a search warrant to carry out any of the his or her non-warrant investigatory steps or techniques if it is authorized under the Act or regulations.  This aspect of the regime will appear straightforward at first but with closer thought it is clear that there fact that the powers and duties referred to have to be “under” the Act or regulations arguably has some significant implications.

The most important of those is that the powers are subject to law, and they are also subject to the Charter.  The search warrant provisions are in addition to and complementary to the standard OHSA Inspectorial powers.

 

Comparison of the OHSA and POA Warrants

 

At the outset, it is important to compare the differences between the two available warrant regimes, OHSA and POA. I is worth mentioning that there may be other applicable regulatory regimes including the Criminal Code and its offences, and that investigations may in some cases overlap in this additional sense.  Where police are involved in a related or even an unrelated investigation arising out of a workplace incident, the complexity of the issues, the nature of the potential penal consequences and the investigative tools available will vary.  This article addresses primarily only the OHSA and touches upon the POA because of the specific inclusion of POA warrants in the OHSA.

 

The major statutory differences are set out in the following table:...

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