Be Prepared If an Inspector Knocks at Your Door

by Daniel Pugen of McCarthy Tetrault
and Karen Sargeant formerly with McCarthy Tetrault

In most Canadian provinces, occupational health and safety legislation provides for government inspections.

Besides random or regular audits, workplace accidents often will prompt inspections, and especially where an accident has taken place, prosecution of the employer and managers is a potential outcome. Inspectors generally have broad powers to enter a workplace, operate or test machinery, interview employees, and seize records, samples, or equipment.

Regulatory climate
The climate is chilly to say the least. In recent years, Ontario’s Ministry of Labour (MOL) has hired hundreds of new inspectors and has put renewed focus on enforcing compliance with occupational health and safety legislation. An example of this can be seen in the MOL’s efforts to curb workplace violence.

As discussed in our blog entry Workplace Violence: Health and safety legislative and regulatory responses, the MOL has devised a workplace violence prevention initiative and has instructed inspectors to make orders and issue directives to employers in certain industries lacking workplace violence prevention programs.

In addition, health and safety legislation has been amended in recent years to institute severe penalties for legislative noncompliance. As an example, in Ontario, the Occupational Health and Safety Act now imposes a maximum fine of $500,000 for corporations and, for individuals, a maximum fine of $25,000 and/or imprisonment for 12 months. Individuals are now being charged with offenses more often than before, both with and without their employer being charged.

Finally, in response to an explosion at a mine in Nova Scotia that killed 26 miners, the Criminal Code of Canada was amended to impose a legal duty on organizations and individuals who direct how others work and to expand the kind of individuals who can be seen as acting for an organization. As a result, it’s now easier for the courts to impose criminal liability for health and safety accidents. (See articles on Bill C-45 amendments and exposure to criminal liability.)

Given this climate, it’s imperative for organizations to have sound and diligent health and safety practices. You also should have procedures in place to deal with health and safety inspectors when they arrive in your reception area.

Tips for responding to health and safety inspectors
The tips below will assist your organization in ensuring that a health and safety inspection in your Canadian operation is conducted in an orderly and reasonable fashion with minimal disruption. Following the tips will provide procedural safeguards against overzealous inspectors and also will decrease the risk that your organization will be charged under health and safety legislation.

Before an inspector arrives

• Designate a contact person (and backup) at each location.
• Develop procedures for dealing with inspectors and train staff in those procedures.
• Maintain a separate file for privileged material (e.g. communications with your attorney).
• Keep in-house or outside legal counsel informed of any situations that may increase the likelihood of an inspection (e.g. a workplace accident, an employee injury on the job, a “near miss,” defective machinery, etc.)

When an inspector arrives

• Immediately contact the designated contact person.
• Check the inspector’s identification.
• Ask the inspector what the purpose of his or her visit is. Is it a general audit or a more specific investigation in aid of a possible prosecution? The inspector’s powers, and your procedural rights, may differ based on the inspector’s answer.
• Consider immediately contacting legal counsel.
• Have someone (hopefully the designated contact person) accompany the inspector at all times. Never leave the inspector alone.
• Be careful not to obstruct the investigation (which could be considered an offense). However, you may be able to make alternate arrangements for the time and date of the inspection.
• Keep notes of everything the inspector does and says in his or her visit. The notes will be invaluable to your counsel if the inspector’s actions need to be challenged in court.
• Remember that anything you say, even if you think it’s “off the record” may be recorded by the inspector and used against the employer or you later.
• Keep a record of all documents and other items taken by the inspector. Object if the inspector requests privileged documents.
• Cooperate in any interviews, but consider asking the inspector to return later to conduct the interviews. This will give legal counsel an opportunity to meet with any persons to be interviewed to help them be prepared. It also will give you a chance to conduct any further internal investigations.
• Request that legal counsel or another employer representative be present in any interviews. If the interviews may lead to prosecution, the individuals have a right to have counsel present.
• Ensure that everyone answers all interview questions honestly. “I don’t know” is an acceptable answer.
• Inspectors may create a “witness statement” and ask the interviewee to sign the document. There is no obligation to sign the statement. However, if forced, the interviewee should sign the statement but note his or her objection in order to avoid obstruction charges.
• If the inspector has a search warrant, immediately contact legal counsel and ask the inspector to wait until your legal counsel arrives. Although inspectors have no obligation to wait, most will. Ensure that the inspector’s activities don’t extend beyond the parameters of the search warrant.
• If you have any objections to anything the inspector is doing, note your objections on paper but don’t attempt to obstruct the search.
• Don’t underestimate the importance of an inspector’s visit. Information gathered by an inspector could form the basis for a prosecution down the road.
• Everything you say or do during an investigation is therefore very important.