Ontario’s Ministry of Labour recently released a new guideline aimed at clarifying the duties and responsibilities of supervisors under the Occupational Health and Safety Act (“OHSA”), entitled Who is a Supervisor under the Occupational Health and Safety Act?

The guideline reviews the duties of a supervisor under the OHSA, who is considered a supervisor for the purposes of the OHSA, and discusses some possible scenarios attracting liability for supervisors and employers. The guideline also refers to court cases dealing with supervisor liability under the OHSA.

Duties of a supervisor

The guideline summarizes the main duties of a supervisor under section 27 of the OHSA as follows:

  • Make sure that workers work in compliance with the OHSA and its regulations;
  • Make sure that workers use any equipment, protective devices or clothing the employer requires;
  • Tell workers about any workplace health and safety hazards that the supervisor is aware of;
  • Give workers written instructions on measures and procedures to be followed for their own protection, if prescribed by regulation; and
  • Take every precaution reasonable in the circumstances to protect workers.

The guideline places particular emphasis on the requirement that “[w]hen appointing a supervisor, the employer must ensure the person is competent”. This emphasis is consistent with the recently established legal requirement that supervisors complete at least basic occupational health and safety awareness training, as per Ontario Regulation 297/13. Please note that there are exceptions to this requirement. If you have questions about whether this requirement applies to supervisors at your workplace, please contact your regular lawyer at the firm.

Who is a supervisor?

The guideline includes a summary of the test for who is or is not a supervisor, and lists a number of factors that are relevant to this inquiry.

The test for whether a person is or is not a supervisor for the purposes of the OHSA is an objective test “based on the person’s actual powers and responsibilities”. The guideline states that “having either charge of a workplace, or authority over a worker, is sufficient for a person to be a supervisor”. In addition, the person who may be a supervisor must have authority to carry on the duties listed under section 27 of the OHSA.

The guideline suggests that an individual with power to do the following may be a supervisor:

  • Hire, fire or discipline;
  • Recommend hiring, firing or discipline;
  • Promote, demote or transfer;
  • Decide a worker’s rate of pay;
  • Award bonuses;
  • Approve vacation time;
  • Grant leaves of absence; or
  • Enforce procedures established to protect worker health and safety.

The above-noted list of factors is non-exclusive, as the guideline notes that an individual could still be a supervisor if he or she has the responsibility of:

  • Determining the tasks to be done, and by whom;
  • Directing and monitoring how work is performed;
  • Managing available resources such as staff, facilities, equipment, budget;
  • Deciding on and arranging for equipment to be used on a job site;
  • Deciding the make-up of a work crew;
  • Deciding on and scheduling hours of work;
  • Dealing directly with workers’ complaints; or
  • Directing staff and other resources to address health and safety concerns.

While the above-noted factors and considerations may be helpful in determining who may be a supervisor, this determination will likely have to be made on a case-by-case basis.

Examples of scenarios attracting liability under the OHSA

The guideline also includes the following examples of situations where an individual may be considered a supervisor for the purposes of the OHSA:

  • Large construction sites may have more than one supervisor, even where these supervisors assign tasks under the direction of a project supervisor.
  • In an underground mine, the mine development leader may not be a supervisor where the development leader is relaying instructions from a supervisor to the workers underground, and has no authority to change the supervisor’s instructions, nor to direct the workers.
  • A journeyperson may not be considered a supervisor if the journeyperson’s role is limited to that of a trainer who oversees the quality of work performed by an apprentice and ensures an apprentice develops the proper skills for the trade. However, in other circumstances a journeyperson may in fact be categorized as a supervisor under the OHSA.
  • In a health care setting, a nurse may be found to be a supervisor for the purposes of the OHSA.

While the above-noted scenarios are helpful in clarifying when an individual may be found to be a supervisor for the purposes of theOHSA, the examples are fact-specific and are not legally binding on the Ministry. As such, employers should not to rely solely on these examples to determine whether an individual may or may not be a supervisor under the OHSA.

Court cases

The guideline discusses five court cases dealing with supervisory responsibilities or that provide additional examples of circumstances where supervisors and employers have been found liable for violations of the OHSA.

For example, the guideline makes reference to an oft-cited case, R v Adomako, where a company owner was found to be personally liable as a supervisor because “he assigned work, was in control of hours, wages, hiring and firing, conducted safety training, controlled production and determined what equipment would be used in the plant”.

While cases such as this exemplify the extent of potential liability for both employers and supervisors under the OHSA, the determination of whether an individual will be held to the standard of a supervisor is a determination that will depend heavily on the specific facts of each case.

Conclusion

The Ministry has indicated that the criteria reviewed in this guideline are part of its Operations Division Policy and Procedures Manual, and are used to train Ministry inspectors; however, the guideline does not replace the OHSA or the regulations.

If you have questions with respect to the interpretation of the OHSA and its application to your workplace and your specific circumstances, please contact your regular lawyer at the firm