The Legal Environment For HRM Seneca College Course HRM855

THE LEGAL ENVIRONMENT FOR HUMAN RESOURCE MANAGERS
COURSE WORKBOOK HRM855 SENECA COLLEGE
PUBLISHED BY GOODMAN AND CARR, LLP
Table of Contents
Page
1.
2. 3. 4. 5.
Test to Determine Whether Employee or Self-Employed Written Employment Contracts Checklist for Termination of Employee Sample Termination Letters A Guide to the Occupational Health and Safety Act, prepared by the Ontario Ministry of Labour The New "Workplace Safety and Insurance Act" Employer's Guide to Completing Form 7, Report of Injury under the Workplace Safety Insurance Act The Pay Equity Commission: The Pay Equity Act Workplace Harassment: Employee Relations Policies Hiring? A Human Rights Guide If You Receive a Human Rights Complaint: A Respondent's Guide, prepared by the Ontario Human Rights Commission Human Rights Code, R.S.O. 1990, Chap. H.19 An introduction to the Canada Labour Code
1 14 19 22 25 70 84 91 96
103 118 126 158
6. 7.
8. 9.
10. 11.
12. 13.
Test to Determine Whether Employee or Self-Employed
RC4110 - Employee or Self-Employed 9
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Employee or Self-Employed?
Visually impaired persons can get this publication in Braille or large print, or on audio cassette or computer diskette. To order, please call 1-800-267-1267 weekdays between 8:15 a.m. and 5:00 p.m. (Eastern time). This pamphlet uses plain language to explain the most common situations. If you need help after you read it, contact your Revenue...Canadai tax;seryicejs office or tax centre. Note The masculine gender used in this guide applies equally to males and females.
Your opinion counts! | Glossary | Introduction Publications In this pamphlet, we refer to publications which you may need to consult. You can get these publications by calling or visiting your tax_s_emcesjQffice^Qax_cjentre. The addresses and telephone numbers are listed under "Revenue Canada" in the Government of Canada section of the telephone book. Our publications are also available on the Internet at the following address: www.rc.gc.ca If you are in the fishing trade, you will find useful information in the pamphlet entitled Fishers and Employment Insurance. If you need more information after you read these publications, contact your tax
Your opinion counts!

If you have any comments or suggestions to help us improve this pamphlet, we would like to hear from you! Please send your comments to: Client Services Directorate Revenue Canada 400 Cumberland Street htlp://www,ecra-adrc,gcxa / E/pub / tg / rc41 I0ed/rc4110ed-01.html
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RC4110 - Employee or Self-Employed?
OttawaONK1AOL5 Glossary Business relationship: a verbal or written agreement in which a self-employed individual agrees to perform specific work for a payer in return for payment. There is no employer or employee. The self-employed individual generally does not have to carry out ail or even part of the work himself. In this type of relationship, a contract for services exists. Employee: an individual who serves an employer. Employer: an organization or individual who is required to pay a salary or other remuneration for services rendered by an employee. Employer-employee relationship: a verbal or written agreement in which an employee agrees to work on a full-time or part-time basis for an employer for a specified or indeterminate period of time, in return for salary or wages. The employer has the right to decide where, when, and how the work will be done. In this type of relationship, a contract of services exists. Non-arm's length relationship: according to the Income Tax Act, a relationship between individuals connected by blood, marriage, adoption, or otherwise. A nonarm's length relationship may also exist between individuals and partnerships or corporations. Self-employed individual: an individual who has a business relationship with a payer.
Introduction
Use this pamphlet if you are a payer or worker and you want to know whether you are in an employer-employee relationship or a business relationship. Each one's responsibilities are different according to the type of employment relationship that exists. In addition, if the type of employment relationship is not correctly established from the beginning, there could be consequences for the payer and the worker. This will be discussed in more detail in Chapter 2. Warning This pamphlet is strictly a tool to assist you in determining if a worker is an employee or a self-employed individual. It does not replace the formal ruling requests. If you are still in doubt after you use this pamphlet, contact your tax services office.
Chapter 1 - Business relationship or employer-employee relationship?

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RC4110 - Employee or Self-Employed9
This chapter sets out a method that should, in most cases, allow payers and workers to determine the nature of their relationship. Each employment is unique and must be examined and analyzed individually, based on the facts, taking into account the context of the employment. To determine if a worker is an employee or a self-employed individual, and thus if there is an employer-employee relationship or a business relationship, you have to examine and analyze the terms and conditions of the worker's employment as they relate to the following four factors:
1. Control
x Analysis of facts
2. Ownership of tools
x Analysis of facts
3. Chance of profit/Risk of loss
x Analysis of facts
I. Integration
Analysis of facts 1.1 Control Begin by looking at the terms and conditions of employment as they relate to control, as this is the most important factor. Generally, in an employer-employee relationship, the employer controls, directly or not, the way the work is done and the work methods used. The employer assigns specific tasks that define the real framework within which the work is to be done. If the employer does not directly control the worker's activities, but has the right to do so, the notion of control still exists. The degree of control exercised by the employer may vary depending on the type of work to be done and the employee's experience and skill. Generally, the payer exercises control if he has the right to hire or fire, determines the wage or salary to be paid, and decides on the time, place, and manner in which the work is to be done. Specifically, the payer may control:
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j w x j the hours of work; the assessment of the quality of the work; the worker's periodic activity reports; the list of clients and the territory covered; training and development.
The fact that the payer controls the worker's activities does not imply that the payer must know how to do everything that the worker is required to do. In short, the payer exercises control if he has the right to decide where, when, and how the work will be done. In a business relationship, however, the payer does not usually exercise control over the worker's activities. The worker can decide how the work will be performed. Analysis of facts The following questions will help you determine whether the payer does exercise control over the worker. If it is obvious that the payer controls the worker's activities, it is highly indicative of an employer-employee relationship.
_
Analysis of facts related to control
Payer
Worker
N/A
Who is responsible for planning the work to be done? Who decides how and how much the worker is to be paid?
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Who decides on the time frames? Who decides how the work is to be done? Who decides on the hours of work? Who decides on the work location? |who assigns the individual tasks? Who supervises the tasks? Who sets the standards to be met? - Quality? - Volume? - Time frame? Who decides whether work must be redone? 1 - Who covers the related costs?
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Who is responsible for training?

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- Who covers the related costs?

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Who decides on the territory to be covered?

Who decides on periodic activity reporting? Who decides if the work is to be done by the worker himself Who hires helpers?
If you answer "Payer" to most of these questions, it means that the payer exercises control over the worker. An employer-employee relationship probably exists. Otherwise, it indicates that a business relationship may exist. 1.2. Ownership of tools Proceed with the analysis of the terms and conditions of employment as they relate to the ownership of tools. The main points to consider are: x the amount invested; x the value of equipment and tools; and x the rental and maintenance of equipment and tools. In an employer-employee relationship, the employer generally supplies the equipment and tools required by the employee. In addition, the employer covers the following costs related to their use: repairs, insurance, transport, rental, and operation (e.g., fuel). In some trades, however, it is customary for employees to supply their own tools. This is generally the case for garage mechanics, painters, and carpenters. Similarly, employed computer scientists, architects, and surveyors sometimes supply their own softwares and instruments. In a business relationship, workers generally supply their own equipment and tools and cover costs related to their use. When workers purchase or rent equipment or large tools that require a major investment and costly maintenance, it usually indicates that they are self-employed individuals, because they may incur losses when replacing or repairing their equipment. Analysis of facts The following questions wili help you determine who risks incurring losses related to the ownership of equipment and tools. http://v.-%'w,ccra-adic,gc.ca/E/pub/tg/rc4110ed/rc4110ed-01.html
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1 Analysis of facts related to ownership of tools 1 Who supplies the heavy equipment or covers its 1 rental costs? 1 Who supplies the specialized equipment or covers its rental costs? j| Who covers equipment maintenance costs? Who supplies the large tools or covers their rental costs? Who supplies the specialized tools or covers their rental costs? Who supplies the small tools? Who covers tool maintenance costs? Who supplies the materials? Who has invested in the equipment and tools? Payer Worker
N/A
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If you answer "Payer" to most of these questions, it means that by supplying the tools and equipment, the payer exercises control over the worker. There is no risk of loss for the worker. An employer-employee relationship probably exists. Otherwise, it indicates that a business relationship may exist. 1.3. Chance of profit / Risk of loss Proceed with the analysis of the terms and conditions of employment in terms of the chance of profit and risk of loss. You have to examine the worker's financial involvement. Determine if the worker: x has the chance of making a profit; x risks incurring losses due to bad debts, damage to equipment or materials, or unforeseen delivery delays; and x covers operating costs. Generally, in an employer-employee relationship, the employer alone assumes the risk of loss. The employer also generally covers operating costs, which may include office expenses, employee wages and benefits, insurance premiums, and delivery and shipping costs. The employee does not assume any financial risk, and is entitled to his full salary or wages regardless of the financial health of the business. The income of an employee paid by the piece or on commission does not depend on the losses or profits of the employer's business. The employee is paid the same per-unit amount no matter how many pieces the employer requires him to produce
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or sell. In a business relationship, the self-employed individual may make a profit or incur a loss. He also covers operating costs. There is no guarantee of a steady income because the self-employed individual's income depends on the results achieved by the end of the contract. Analysis of facts The following questions will help you determine if the worker has the chance of making a profit or risks incurring losses. Analysis of facts related to chance of profit/risk of loss Who covers the costs of damage to equipment or materials? Who covers the costs of liability insurance? Who covers office expenses? Who covers rental costs? Who covers delivery and shipping costs? Who covers costs related to bad debts? Who assumes responsibility for ensuring that guarantees relating to materials are honoured? Who assumes responsibility for the performance of the work? Who guarantees the quality of the work? Who covers the costs incurred by the worker in carrying out the work? Who covers the costs of the worker's benefits (paid vacation, sick leave, life insurance premiums, etc.)?
Payer
Worker
N/A
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If you answer "Payer" to most of these questions, it means that there is little involvement on the part of the worker, and that his income does not depend on the results achieved at the end of the contract. An employer-employee relationship probably exists. Otherwise, it indicates that a business relationship may exist. 1.4. Integration If you were not able to determine the nature of the relationship between the payer and the worker with the first three factors, you have to pursue the analysis, The final
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factor, integration, should settle the question. Integration has to be considered from the point of view of the worker, not the payer. Where the worker integrates the payer's activities to his own commercial activities, a business relationship probably exists. The worker is acting on his own behalf, he is not dependent on the payer's business and he is in business for himself. Where the worker integrates his activities to the commercial activities of the payer, an employer-employee relationship probably exists. The worker is acting on behalf of the employer, he is connected with the employer's business and is dependent on itAnalysis of facts The following questions will help you determine if the worker is in business for himself and, thereby, if an employer-employee relationship or a business relationship exists. This last analysis consists of a global review of the first three factors. Integration What was the answer to most of the questions related to the control factor? What was the answer to most of the questions related to the ownership of tools factor? What was the answer to most of the questions related to the chances of profit/risk of loss factor? Payer Worker
If you answer "Worker" to these questions, it indicates that the worker integrates the payer's activities to his own activities. A business relationship probably exists. Otherwise, it is reasonable to conclude that an employer-employee relationship exists. Still in doubt? If, after analyzing facts relating to the four factors, you still can not determine the nature of the relationship between the payer and the worker, contact your tax seivicesjoffice, where you can obtain a ruling request form. You have until June 30 of the following year to request a ruling. Summary table In the following table, we brought together a!! of the questions that appear in the first 3 tables of this chapter. You might want to copy this sheet, which gives you a summary of the preceding pages. http://\vww.ccra-adrc.gc.ca/E/pub/tg//rc4110ed/rc41 IQed-Ol.html
1
Who is responsible for planning the work to be done? Who decides how and how much the worker is to be paid? Who decides on the time frames? Who decides how the work is to be done? Who decides on the hours of work? Who decides on the work location? Who assigns the individual tasks? Who supervises the tasks? Who sets the standards to be met? - Quality? - Volume? - Time frame? Who decides whether work must be redone?
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Payer Worker
N/A
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P 1 1
d 1 1
1 1 1
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- Who covers the related costs? Who is responsible for training? - Who covers the related costs? Who decides on the territory to be covered? Who decides on periodic activity reporting? Who decides if the work is to be done by the worker himself? Who hires helpers? Who supplies the heavy equipment or covers its rental costs? Who supplies the specialized equipment or covers its rental costs? Who covers equipment maintenance costs? Who supplies the large tools or covers their renta! costs? Who supplies the specialized tools or covers their
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I rentai costs? Who supplies the small tools? Who covers tool maintenance costs? Who supplies the materials? Who has invested in the equipment and tools? Who covers the costs of damage to equipment or I materials? Who covers the costs of liability insurance? Who covers office expenses?
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Who covers rental costs? Who covers delivery and shipping costs? Who covers costs related to bad debts? Who assumes responsibility for ensuring that guarantees relating to materials are honoured? Who assumes responsibility for the performance of the work? Who guarantees the quality of the work? Who covers the costs incurred by the worker in carrying out the work? D covers the costs of the worker's benefits (paid ation, sick leave, life insurance premiums, etc.)?
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Chapter 2 - Responsibilities Employer-employee relationship Where an employer-employee relationship exists, the employer must: x register to Revenue Canada Business Number (BN); x withhold income tax, Canada Pension Plan (CPP) or Quebec Pension Plan (QPP) contributions, and Employment Insurance (El) premiums on amounts paid to employees; x remit the amounts withheld as we!! as the required employer's share of CPP/QPP contributions and El premiums to Revenue Canada (and te ministere du Revenu du Quebec if applicable); x report the employees' income and deductions on the appropriate information return; and http://www.ccra- adrc. gc.ca/E/pub/tg/rc411 Oed/rc4110ed-01.html
RC4110 - Employee or Self-Employed 9

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x give the employees copies of their T4 slips by the end of February of the following calendar year. For more information on this subject, see the pamphlet entitled The Business Number and your Revenue Canada Accounts and the Employers' Guide to Payroll Deductions - Basic Information. The employer is also responsible for registering with the relevant provincial organizations if applicable (Work Place Safety and Insurance Board (WSIB), for example). Note Generally, the employee could be eligible for El benefits. The employee can also be eligible for employee benefits, such as sick leave, wage loss replacement plan, profit sharing. If a payer considers a worker as a self-employed individual while the worker is in fact an employee, the payer will have to pay both parts of El premiums and CPP/QPP contributions for the complete duration of the employment. Penalties and interest can also be charged. It is therefore very important to correctly determine the type of employment relationship. Business relationship Where a business relationship exists, and where the self-employed individuals' income exceeds $500 or income tax has been deducted, the payer must: x report the self-employed individuals' income and tax deductions, if any, on the appropriate information return; and x give the self-employed individuals copies of their T4A slips by the end of February of the following calendar year, if applicable. For more information, see chapter 6 of the Employers' Guide to Payroll Deductions - Basic Information. Self-employed individuals must pay both shares of CPP/QPP contributions. They may also have to pay their income tax and CPP/QPP contributions in instalments. For more information, see the guide entitled Paying Your Income Tax by Instalments. Note Generally, self-employed individuals are not eligible for E! benefits. Special situations Special ruies concerning E!, CPP/QPP, and income fax may apply for certain categories of seif-empioyed individuals, including: barbers and hairdressers;
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x drivers of taxis and other passenger-carrying vehicles; x fishers; and x placement and employment agency workers. For a complete list of the situations where special rules may apply, or for more information, see chapter 8 of the Employers' Guide to Payroll Deductions - Basic Information.
Chapter 3 - Excluded Employment and Non-Arm's Length Relationship

Excluded employment As a rule, an employee pays Employment Insurance (El) premiums and may be entitled to receive El benefits. However, if the employment is excluded employment under the Employment Insurance Act, the employee does not have to pay premiums and is not eligible for El benefits. Employment may be excluded for a number of reasons. One of them is a situation where the employee and employer are in a non-arm's length relationship (see the glossary). Non-arm's length relationship The purpose of excluding employment where a non-arm's length relationship exists is to minimize occurrences where a person would simulate an employment situation for a parent, a close friend, or a partner solely to obtain that a request for employment insurance premiums be accepted. Under the Employment Insurance Act, employment that is excluded because of a non-arm's length relationship can still be included, if the Minister of National Revenue (or his representative) is satisfied that the terms and conditions of employment are reasonable. Where the Minister (or his representative) examines the terms and conditions of employment, he analyzes a number of factors, including: x x x x the remuneration paid; the terms of employment (e.g., hours of work, duties); the duration of work performed; and the nature and importance of work performed.
After the analysis, if the Minister (or his representative) is satisfied that it is reasonable to conclude that the employer would have offered a substantially similar contract of employment to an unrelated person, the employment is no longer considered to be excluded. For a complete list of the types of employment that are excluded, or for more information, see chapter 3 of the Employers' Guide to Payroll Deductions - Basic http: / /www,ccra-adrc,gc,ca i E/pub/ta / rc41 lQed/rc4! 10ed-Ql.html
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Information. Analysis of facts The following are examples of questions that the Minister (or his representative) will ask to determine if it is reasonable to conclude that the employer would have offered a similar contract of employment to an unrelated person. x Is the employee's salary comparable to that of other employees with similar tasks in the business? x Is the employee's salary comparable to that of employees with similar tasks in similar businesses in the area? x Is the employee's salary reasonable given the tasks performed? x Does the employee receive his salary regularly? Did the employee invest in the business? If yes, was it a major investment? x Are the employee's hours of work comparable to those of other employees with similar tasks in the business? x Are the employee's hours of work comparable to those of employees with similar tasks in similar businesses in the area? x Are the employee's tasks comparable to those of other employees with similar jobs in the business? x Are the employee's tasks comparable to those of employees with similar jobs in similar businesses? x Are the employee's tasks necessary to the well-being of the business? x Is the employee's work duration comparable to that of other employees of the business, considering low activity periods? x Is the employee's work duration comparable to that of employees with similar jobs in similar businesses in the area, considering low activity periods? x Does the employee perform tasks related to his employment (e.g., bookkeeping, public relations, attendance at conventions, sales) during his periods of inactivity? x Is the employee's work duration related to the business's real operational requirements? x Is the importance of the employee's work comparable to that of other employees of the business? x Is the employment essential to the business? x Is the nature of the employee's work comparable to that of other employees of the business?
Canada
Gop.yng.ht/Disclaimer -
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Written Employment Contracts
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GOODMAN AND CARR
BARRISTERS AND SOLICITORS
April, 1998
Contact:
Joanne Schaefer jschaefer@goodmancarr.com
EMPLOYMENT CONTRACTS
Employment contracts are becoming a more common means of clarifying many of the terms of the employment relationship. A written employment contract which is finalized prior to the commencement of the employment relationship allows the employer and the employee to negotiate terms at a time when they are most optimistic about their relationship, and therefore, more likely to be fair with one another. The written contract will provide answers to questions that often plague employment relationships. What /s the vacation entitlement? How much notice is required before termination? Can the employer after the employee's safes territory? A proper employment contract will address issues like these and many others. Although more and more employers are hiring with written employment contracts, some employers oppose their use. Their main fear seems to be that a written contract crystallizes the relationship, thereby reducing the employer's right to make changes. These are legitimate concerns that can be addressed in the contract itself. In fact, a written contract can, in most circumstances, provide greater flexibility to the employer.
HOW SHOULD A WRITTEN EMPLOYMENT CONTRACT FOR A NEW HIRE BE IMPLEMENTED?
New candidates for employment should be given the offer and advised to take it away to consider and obtain advice, legal or otherwise, before signing the contract. Do not allow the candidate to sign the contract at the meeting. The candidates should receive the policy manual and be told to read all the documents prior to the first day of work. The signed contract and the policy manual must be collected before the employee commences work on the first day. Failure to execute the written employment contract prior to an oral contract of employment being finalized will likely result in the terms of the written agreement being unenforceable,
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CAN WRITTEN EMPLOYMENT CONTRACTS BE IMPLEMENTED FOR EXISTING EMPLOYEES?
Generally, an employer cannot insist that existing employees sign a written contract. Quite innocently the employer may be altering rights the employee has gained through her/his tenure. Therefore, insisting on a written contract could amount to constructive dismissal. If employees do not receive any consideration for the alternation of their existing rights, the contract may be challenged later in court and found to be unenforceable. However, there may be situations which create an opportunity for the employer to implement a written employment contract for an existing employee. Where the employee is being offered a promotion or change in remuneration, such offer can be made conditional on the execution of a written contract. Alternatively, some employers wish to implement a written employment contract policy for all of their existing employees at one time, whether or not those employees are receiving a promotion, etc. Those employers can also implement written employment contracts, provided they comply with the legal requirement for a binding variation of their existing employment contract with those employees. In order for the written employment agreement to be binding, the employee must receive consideration for giving up certain of her/his rights, most notably, notice of termination.
WHAT SHOULD BE INCLUDED IN THE CONTRACT?
The content of an employment contract is limited only by the creativity of the parties and certain statutory restrictions which protect employees (i.e., human rights, minimum employment standards, health and safety, etc.). The content of your employment contract should4nclude the following: 1. Clear language - setting out the parties' obligations. Contracts that are ambiguous will be interpreted by judges against the employer.
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2. Duration of Contract - unless hired for a specific job or for a specific time period, employees should be hired for an indefinite time period. In many cases, employers are too busy to ensure that fixed term contracts are renewed. If the contract lapses and is not renewed, the employee's legal rights may be greater than those which were initially negotiated. Entire Agreement - the written contract will be the essence of the employeremployee relationship. It must clearly state that any previous terms are replaced by the written employment contract. This point is particularly important if the employer enters into an employment contract with an existing employee. For example, the current employee may have been promised a termination package by a former manager. Probationary Period - a probationary period (usually 3 or 6 months) is an excellent way to ensure that the candidate is right for the position. The contract must use clear language which sets out the concept of and the length of the probationary period. Termination for Cause - the contract should provide that an employer may terminate the employment of an employee at any time, without notice or payment in lieu of notice, for any cause recognized at law. Termination Without Cause - properly drafted contracts that provide termination and severance pay in accordance with minimum employment standard provisions are enforceable. This is so regardless of the employee's position and length of service. However, an employer should anticipate that there may be amendments to these laws. Accordingly, future amendments to these minimum standards should be accommodated. .ot<. Job Description - the employment contract should detail the employee's duties, either in the body of the contract or attached as a schedule. A schedule is recommended if a- substantial part of the employee's duties will frequently change. Instead of signing a new contract each time the duties change, the parties can initial a new schedule. !f properly drafted and the term is reasonable, the employee can negotiate the right to amend the employee's duties, territory or customers even if the
3 si 3
3.
4.
5.
6.
7.
amendment reduces the employee's remuneration. The employee should agree that such changes will not amount to constructive dismissal even if her/his remuneration is affected. 8. Confidentiality - employers should include provisions that will protect them after the employee leaves employment. Every contract should include a confidential information clause which establishes the employee's duty not to disclose or use confidential information. Confidential information should be defined to fit the workplace and the type of information available to the employee. Trade Secrets - it may be appropriate to include a clause that would protect any trade secrets or inventions developed by employees in the course of their employment. A clear statement that any such invention remains the property of the employer may be appropriate. Non-Solicitation - a non-solicitation agreement is another essential clause where employees have access to customers and suppliers. These clauses protect the employer if the employee leaves to work for a competitor. The clauses will give the employer a remedy against the former employee and the new employer if they approach employees, customers and suppliers. Many employers make the mistake of asking employees to sign non-solicitation clauses AFTER the employee has been hired. Remember, for the contract to be enforceable, it must be signed BEFORE the employee is hired or in the contract of an arrangement which satisfies the legal elements of a binding variation of the employment contract. Non-Competition - a valid non-competition clause would prohibit an employee from competing with the employer in any manner for a period of time within the specified territory. However, it must be noted that Judges are often reluctant to enforce these clauses. Vacation - vacation entitlement, as well as restrictions on the carry over of unused vacation days and the employer's right to approve requested vacation times, should be included. A written contract also allows the employer to institute a policy whereby vacation entitlement increases with tenure.
9.
10.
11.
12.
13.
Sick Days - details regarding the employee's rights to sick days, to be paid out for unused sick days and obligation to provide doctor's certificate or submit to a medical examination can also be addressed. Such clauses are important to avoid problems with frequent absences.
Tha ^formation above 1 not, nor n h Irrtandcd to b, lagal advica. You ahoidd conautt an ttomay for individual *dvic* ragarding your own aHuation.
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Checklist for Termination of Employee
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TERMINATION CHECKLIST
Name: Notes & Date
BEFORE TERMINATION 1. Review personnel file: * review employment contract for terms regarding termination, if any * review employment contract for terms regarding reimbursement of advances/expenses * ensure all managers have signed off on decision 2. Review benefits issues * health, medical, dental, vision, prescription * life insurance * STD/LTD * Group RRSP * Pension * Company Car 3. Review whether should be cause or without cause * if any doubt, call lawyer * if performance, but not misconduct, check for written warnings (ESA notice may still have to be given) 4. Determine who should be at termination meeting 5. Determine when the termination should be scheduled 6. Prepare termination letter Opening Date - immediately or actual notice to
[insert date]
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Termination Checklist Precedent Goodman and Carr Package Options: ESA only: none (for cause or within probation, end of term or actual notice given) salary & benefit continuation (to date: ) lump sum & benefit continuation (to date: ) Enhanced - Common law none (for cause, within probation, end of term, enough actual notice given, contractual provision re: notice) salary continuation to Obligation to mitigate Yes No use 50% of remainder clause if obligation to mitigate? or use 100% deduction if obligation to mitigate? benefit continuation to $ in lieu of benefits? Explain re benefits Detail what is being done with: * medical benefits * life insurance * STD/LTD * Group RRSP * Company Car * Stock Options * Commission - what about deals that close after last active day of employment, but during "notice period" - ESA or "notice period" at common law. Any Advances on Salary? vacation pay in lieu of repaid by way of deduction or forgiven? yes no
days [insert "0" if no days owing] 1 week 10 days yes no 2 weeks
How much time to accept enhanced offer?
Do we put in clause re: time to-eonsult independent legal counsel? Do we require a release? yes no
Do we require return of company property? e.g. car, laptop, books Are we prepared to provide confirmation of employment letter or letter of reference? Circle which applies.
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Termination Checklist Precedent Goodman and Carr 7. Schedule termination meeting (at end of day mid-week preferable) 8. Prepare payroll instructions * * * * * Pay - last day worked notice - salary continuation v. lump sum benefits continued to benefits cease immediately upon termination (e.g. LTD) Record of Employment - determine ground for ROE e.g. Dismissal, Other, Lay off
AT TERMINATION INTERVIEW Letter presented and reviewed Independent Legal Advice explained Offer to talk later regarding any questions Agree on public announcement, if possible. Escort out of building, if termination immediate and deemed necessary Obtain company property - keys, security pass, calling card, books - or explain when company property must be returned _ Prepare notes (attach to form) - detail timing, who present, what said, mood of employee Obtain forwarding address, if necessary, for T4 slip in April of next year and advise of importance of keeping address current. POST TERMINATION Determine client/supplier communications strategy and assign to Ensure computer security strategy effective immediately Deal with transition of phonemail and email issues _____ Update Forwarding information
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Sample Termination Letters
(LETTERHEAD OF ABC COMPANY)
Dear Ms. Smith: As you are aware we have experienced difficulties due to your attitudes towards other employees in our organization. Notwithstanding discussions that we have had in this regard, you appear to be unwilling or unable to change these attitudes. Your inability to work harmoniously and productively with other executives and employees leaves us with no alternative but to terminate your employment with us effective . However, keeping in mind your past service, we are prepared to offer you the following settlement in return for a full and final release, a copy of which is attached, and the terms of which are hereby incorporated into this settlement by reference. 1. 2. 3. 4. ABC Co. will pay you your current salary up to the termination date. ABC Co. will pay to you on the termination date by way of a lump sum cheque (less all applicable withholding obligations), an amount equivalent to salary. ABC Co. will continue your fringe benefits for paragraph 4 below. from the termination date subject to
Should you obtain new employment during this period, you will notify ABC Co. immediately. Upon such notification, continuation of your fringe benefits will cease, but you will not be required to return any of the monies paid to you by ABC Co.. At the end of the period, that is on or before , you may provide ABC Co. with proof in the form of an affidavit that notwithstanding reasonable efforts on your part to obtain suitable new employment, you have been unable to find same. Upon receipt of such affidavit, ABC Co. will continue your regular salary and fringe benefits up to a maximum of months as if you were still an employee on a regular payroll basis. The continuation of your salary during such maximum period will not entitle you to any further vacation allowance, nor will it be included in the calculations of any statutory vacation pay. Should you obtain or receive an offer of employment at any time during such period, ABC Co. is to be notified immediately, and upon such notification all payments to you shall cease.
5.
6.
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23
7. Should you fail to notify ABC Co. upon obtaining suchnew employment or an offer of employment during such maximum period, you hereby agree that ABC Co. will be entitled to be reimbursed by you for any monies it has paid to you subsequent to the date that you commenced new employment or received an offer of new employment. You hereby agree to waive any rights of defence you may have to such a claim against you by ABC Co. Your participation in the Company Pension Plan will terminate on the termination date. You will be permitted to use the Company provided car until the acceptance date of this offer, at which time you may if you wish to purchase the car from the leasing company for its then current book value. However, should you not wish to purchase the car, you will return the car to ABC Co. on or before the termination date. You are to return to ABC Co., upon receipt of this offer, all Company credit cards in your possession. You will submit to ABC Co., on or before the acceptance date of this offer, an expense account for all approved expenses incurred on behalf of the Company up to the termination date, and ABC Co, will reimburse you for these expenses.
8. 9.
10. 11.
This proposal in its entirety is subject to your acceptance up to 4:00 p.m., . Your signature at the bottom of one of the enclosed copies of this letter, together with an executed copy of the attached release, return on or before that date, will signify your acceptance of this proposal. Yours very truly,
Name of Representative of ABC Co. ABC CO.
I have read and understand the above proposal and attached release and agree to the terms specified therein. DATE SIGNATURE ,
L:\LAWYERSXAM'Seneca'Fai! 2CCOYTminaiion Package Ur.fira
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(LETTERHEAD OF ABC COMPANY)
Dear Mr. Smith: Further to our recent discussions, I now advise you that effective , you no longer have a position with this company. During the period up to and including , it is our expectation that you will carry out your duties and responsibilities in the same loyal and faithful manner as you have in the past. In turn, we assure you that the terms and conditions of your employment are maintained until . In addition, we are prepared to give you reasonable time off in order to search for another position upon being given 24 hours written notice of any interviews you may have. Of course, we will supply you with a favourable reference in order to help you secure another position. It is unfortunate that our relationship has to end in this fashion, but we have no alternative under the circumstances. Again, lest there be any misunderstanding, you are hereby formally put on notice that your position with this company will end effective . Yours truly,
ABC Company
Lj\iAWYERS\AM\Sneca Course-Summer ZOOOVTeraiination Actual Nodes Ls.ttrs
A Guide to the Occupational Health and Safety Act, prepared by the Ontario Ministry of Labour
A Guide to the Occupational Health and Safety ActOntario Ministry of Labour
25
ONTARIO
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Occupational Health and Safety
Ontario
A Guide to the Occupational Health and Safctv Act
Contents Introduction 1. About JhisjGuide 2. About the Act 3, >yhp.Is.Co.v_ered_bxth.e_ActJ 4, Joint Health and Safer1, 6. Duties of Employers and Other g. The Right to Stop Work Persons
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X The Powers of the Joint Health and Safety Committee X Employer's Dun1 to Co-operate with the Committee X Certified Members of Committees X Worker Trades Committees on Coj}Sti'Ui:tion Projects Confidentiality of Information To r/c Substances X Notices Required from Employers % Ditties ofSupen'isors X Duties of Constructors X Duties of Owners X Duties of Suppliers X Duties of Licensees X Duties of Corporate Officers and Directors X X X The Control of Toxic Substances /Vew Substances The Rizht to Know About Toxic Substances X Responsible [Jse of the Riyht to Stop Work
9. Toxic Substances
10. Workplace Health and Safety Agency 11. Enforcement 12. Appendices
X Appendix A ; Howjo Prepare^ an Occupaiipnal Health and Safety Policy X Appendix B - Regulations Made Under the Occupational Health and Safety Act X Appendix C - Ministry of Labour Offices
5. Health and Safety

* Hie Powers aft/ie Health and Safety Representative
X Liability of Architects and Engineers X Duties of Workers
7. The Right to Refuse Work
Copies of this Guide and other guides, along with the Statutes and Regulations relating to Occupational Health and Safety and Employment Practices may be purchased from: Ministry of Labour
Publications 400 University Avenue, 7th floor Toronto, Ontario M7A 1T7 Telephone (4 1 6) 326-773 1 or toll-free in Ontario 1 -800-268-80 1 3, ext. 6-773 1 Cheques and money orders payable to the Minister of Finance. Prepayment required. VISA, MasterCard and debit cards accepted Ministry of Labour Regional Offices (call your local office to check on the availability of specific publications)
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Publications Ontario
X Toronto for personal shopping: Publications Ontario 880 Bay Street X Out-of-town customers write to: Publications Ontario 880 Bay Street, 5th floor Toronto, Ontario M7A 1N8 Telephone (416) 326-5300 or toll-free in Ontario 1-800-668-9938 Hearing impaired call: (416) 965-5130 or toll-free in Ontario 1-800-268-7095. Cheques and money orders payable to the Minister of Finance. Prepayment required. VISA. MasterCard and debit cards accepted X Online: Visit POOL, Publications Ontario On-Line to place an order through the World Wide Web, http://www.gov.on.ca/MBS/enghsh/publications/index.html
Introduction
We all share the goal of making Ontario's workplaces safe and healthy.
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The Occupational Health and Safety Act provides us with the framework and the tools to achieve this goal. It sets out the rights and duties of all parties in the workplace. It establishes procedures for dealing with workplace hazards, and it provides for enforcement of the law where compliance has not been achieved voluntarily. Changes to the Act in 1990 continue the evolution of occupational health and safety legislation in Ontario. These changes build on our combined experience since the Act came into force in 1979. They reinforce the structures, in particular the joint health and safety committees, that have proven to be effective. They extend the rights, duties and accountability of all who have a role in workplace health and safety. Every improvement in occupational health and safety benefits all of us. Through cooperation and commitment, we can make Ontario a safer and healthier place in which to work. It's worth working for.
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1. About this Guide

If you are concerned about workplace health and safety, you should take the time to read this guide. It explains what every worker, supervisor, employer, constructor and workplace owner needs to know about the Occupational Health and Safety Act. It describes everyone's rights and responsibilities and it answers, in plain language, the questions that are most commonly asked about the Act. However, please remember that this guide is only an explanation of the Act. It is not a legal document. To make the guide easier to read, some parts of the Act have been omitted or condensed. The guide does not cover every situation or answer every question about the legal requirements concerning workplace health and safety in Ontario. In some situations, you may need to know exactly what the Act says, so that you can be sure you are making the right decision or giving the right advice. In such cases, you must read the Act and the regulations. But if you read this guide beforehand, you will find the legislation easier to understand. Throughout the guide, the relevant section numbers of the Act have been inserted in the text. If you need help in answering questions about the Act or the regulations, you should contact your nearest office of the Ministry of Labour. You can find the addresses and phone numbers of offices around the province in Appendix C.
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1, About the Act
to C ontents
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The Occupational Health and Safety Act came into force on October 1, 1979. Its purpose is to protect workers against health and safety hazards on the job. The main features of the Act are described below. The Workplace Partnership Workers and employers must share the responsibility for occupational health and safety. This concept of an internal responsibility system is based on the principle that the workplace parties themselves are in the best position to identify health and safety problems and to develop solutions. Ideally, the internal responsibility system involves everyone, from the company chief executive officer to the worker. How well the system works depends upon whether there is a complete, unbroken chain of responsibility and accountability for health and safety. Several provisions of the Act are aimed at fostering the internal responsibility system. Two new and important provisions are: (1) the requirement for employers to have a health and safety policy and program; and (2) the direct responsibility that officers of a corporation have for health and safety. The joint health and safety committee, or, in smaller workplaces, the health and safety representative, has a role to play by monitoring the internal responsibility system. The Act sets out the basic rules of operation for both joint committees and health and safety representatives.
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The Rights of Workers To balance the employer's general right to direct the work force and control the production process in the workplace, the Act gives four basic rights to workers. THE RIGHT TO PARTICIPATE Workers have the right to be part of the process of identifying and resolving workplace health and safety concerns. This right is expressed through worker membership on joint health and safety committees, or through worker health and safety representatives. THE RIGHT TO KNOW Workers have the right to know about any potential hazards to which they may be exposed. This means the right to be trained and to have information on machinery, equipment, working conditions, processes and hazardous substances. The parts of the Act that implement the Workplace Hazardous Materials Information System (WHMIS) play an important role in giving workers the right to know. THE RIGHT TO REFUSE WORK Workers have the right to refuse work that they believe is dangerous to either their own health and safety or that of another worker. The Act describes the exact process for refusing dangerous work and the responsibilities of the employer in responding to such a refusal. THE RIGHT TO STOP WORK In certain circumstances, members of a joint health and safety committee who are 'certified' have the right to
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stop work that is dangerous to any worker. The Act sets out these circumstances and how the right to stop work can be exercised.
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Duties of Employers and Other Persons The Act imposes duties on those who have any degree of control over the workplace, the materials and equipment in the workplace and the direction of the work force. There is a general duty on employers to take all reasonable precautions to protect the health and safety of workers. In addition, the Act and regulations set out many specific responsibilities of the employer. For example, there are duties that specifically relate to toxic substances, hazardous machinery, worker education and personal protective equipment. There is a duty on all officers and directors of corporations to ensure that their corporations comply with the Act and regulations. The duties of workers are generally to work safely, in accordance with the Act and regulations.
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Workplace Health and Safety Agency The Workplace Health and Safety Agency was established in 1990. It is ran jointly by representatives of industry and labour in Ontario. The main purpose of the agency is to develop and deliver worker training programs. Other functions of the agency include setting standards for the certification of joint committee members, funding occupational health and safety research and overseeing the operation of the accident prevention associations, worker training centres and health and safety clinics.
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Enforcement If the internal responsibility system fails to address adequately the health and safety issues in a workplace, or if the Act and regulations are not being followed, the Ministry of Labour has the authority to enforce the law. Inspectors have broad powers to, among other things, inspect any workplace, investigate any potentially hazardous situation and work refusal, order compliance with the Act and regulations and initiate prosecutions. Employers, supervisors and workers must assist and co-operate with inspectors.
Regulations The Occupational Health and Safety Act, which gives the Government of Ontario broad powers to make regulations, sets out general principles and duties for the workplace parties. The regulations set out in detail how these duties are to be carried out. Many regulations have been passed under the Act. For example, there are three separate safety regulations that apply to industrial establishments, construction sites and mines. There are also regulations for each of 11 different chemicals known as 'designated substances'. These regulations apply only to workplaces where designated substances are present. Employers, supervisors, owners and constructors, among others, have an obligation to know and comply with the regulations that apply to their workplaces. A complete list of the regulations that have been passed under the Act can be found in Appen.dix_B.
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3. Who Is Covered by the Act?

Delhiiiions Work and Workplaces Not Covered Return to Contents
Almost every worker, supervisor, employer and workplace in Ontario is covered by the Occupational Health and Safety Act and regulations. Also covered are workplace owners, constructors and suppliers of equipment or materials to workplaces that are covered by the Act. Workplaces that are not covered are listed at the end of this chapter.
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Definitions WORKPLACE Any place in, on or near to where a worker works. A workplace could be a building, a mine, a construction site, an open field, a road, a forest or even a beach. The test is: Is the worker being directed and paid to be there, or to be near there? If the answer is 'yes', then it is a workplace. WORKER A person who is paid to perform work or supply services. This does not include an inmate of a correctional or similar institution working inside the institution on a work project or rehabilitation program. EMPLOYER A person who employs one or more workers. This includes someone who contracts for a worker's sen-ices, For example, if you pay a temporary help agency for the services of workers supplied by the agency, you are the employer of those workers while they are under your direction,
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A contractor or subcontractor who performs work or supplies services for an owner, constructor, contractor or subcontractor is also an employer if he or she in turn employs workers. CONSTRUCTOR A person who undertakes a construction project for the owner of a site or building. This also includes the owner who personally undertakes all or part of the project, whether alone or with another employer. The constructor is generally the person who has overall control of a project.
NOTE: Throughout this guide, the word 'employer'generally includes 'constructor'. In many cases, 'constructor"has been left out to make the guide easier to read. Sections of the Act or regulations that apply only to constructors will be explained as they arise.
SUPERVISOR A person who has charge of a workplace or authority over any worker. OWNER The person who owns the lands or premises that are being (or will be) used as a workplace. This includes a tenant, lessee, trustee, receiver, mortgagee in possession or occupier of the lands or premises. It also includes any person who acts as an agent for the owner. LICENSEE A person who holds a logging licence under the Crown Timber Act. Under the Occupational Health and Safety Act, a licensee is not an employer. However, he or she does have certain duties and must comply with any orders issued by an inspector. SELF-EMPLOYED The Act has limited application to the self-employed (section 4). The sections of this guide that explain the duties of the employer indicate those duties that apply to the self-employed. In addition, the inspector's powers to enforce the law, as well as the penalties for a violation, apply with the necessary modifications to the self-employed.
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Work and Workplaces Not Covered The Act does not apply to: K work done by the owner or occupant, or a servant, in a private residence or on the connected land (section 3(1)); ss farming operations (section 3(2)); and x workplaces under federal (Government of Canada) jurisdiction, such as: .- post offices ^ airlines and airports > banks ~ some grain elevators
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Bell Telephone interprovincial trucking, shipping, railway and bus companies. Federal workplaces are covered under a different law: the Canada Labour Code. However, federal authorities accept that outside contractors and their employees, while in federal workplaces, are under provincial jurisdiction. If there is any question about whether you or your workplace is covered by the Act, contact your nearest Ministry of Labour office.
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4. Joint Health and Safety Committees

The Powers of the Joint Health and Safety Committee Employ*.'L!S Q'ft' *9. Co-operate with the Committee ^T.Û}.^L Memben of Committees Worker Trades Committees on Construction Projects Confidentiality of Information Return to Contents
A joint health and safety committee is an advisory group of worker and management representatives. The workplace partnership to improve health and safety depends on the joint committee. It meets regularly to discuss health and safety concerns, review progress and make recommendations. This chapter outlines the requirements of the Act that cover committees. More detailed information is available in the separate booklet called A Guide for Joint Health and Safety Committees and Representatives in the Workplace, available from the Ministry of Labour and the Publications Ontario. Where are joint committees required? Joint committees are required in the following workplaces: x any workplace that regularly employs 20 or more workers (section 9(2)(a)); x construction projects where 20 or more workers are regularly employed and that are expected to last three months or more; x any workplace (other than a construction project) to which a regulation concerning a designated substance applies, even if fewer than 20 workers are regularly employed (section 9(2)(c)); any workplace where an order has been issued under section 33 of the Act (section 33 orders are explained in Chapter 9. Toxic Substances' ), even if fewer than 20 workers are regularly employed (section 9(2)(b)); and x any workplace or construction project that has been ordered by the Minister of Labour to establish a committee (section 9(3)). Who is responsible far establishing a committee? Every employer or constructor whose workplace falls into one of the above categories is responsible for establishing a joint committee. This means causing the members to be chosen and setting aside a time and place for meetings.
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How many members must a committee have? The minimum size of the committee depends on the number of workers. Where fewer than 50 workers are regularly employed, the committee must have at least two members (section 9(6)(a)). If 50 or more workers are regularly employed, the committee must have at least four members (section 9(6) (b)). As a general guide, the committee should be large enough so that the health and safety concerns of the entire workplace are represented. For example, if a workplace has a plant, office, laboratory, warehouse and delivery drivers, each of these areas should be represented on the committee. Who can serve as a committee member? How are members chosen? Except for the following rules, there are no restrictions on who can serve on joint health and safety committees: x At least half the members on the committee must represent workers (section 9(7)). x An employee who has the authority to discipline, hire, fire or recommend discipline, hiring or firing is considered a managerial employee. He or she can serve on the committee, but not as a worker representative. x The members representing workers must be employed by the workplace covered by the committee. Members no longer employed by the workplace cannot serve on the committee (section 9(10)). x The members representing workers must be chosen by the workers or, where applicable, by the trade union(s) representing the workers (section 9(8)). x The managerial members of the committee are chosen by the employer. Where possible, they should be employed at that workplace. If there are no managerial employees at the workplace covered by the committee, these members can come from another workplace of the employer (section 9(9)). x At least one worker and one management representative on the committee must be certified (section 9 (12)). (For more information on certified members) x The names and work locations of the committee members must be posted in the workplace, where they are most likely to be seen by the workers. The employer or constructor is responsible for this posting (section 9(32)). How should a committee operate? The Act sets out only a few rules on how the committee should operate. Other than the following, the committee is free to decide its own procedures. x The committee must meel at the workplace at least once every three months (section 9(33)). Many committees may need to meet more often. x The committee must be co-chaired by two members. One of the co-chairs is chosen by the members who represent workers, the other by the members representing the employer (section 9(11)). x Members are entitled to one hour of paid preparation time before each meeting. The committee can decide that more paid preparation time is required. Members are also paid for time spent at meetings and for carrying out certain other committee duties. They are paid their regular rate or, where applicable, their premium rate of pay (section 9(34) and (35)). * The committee must keep a record (minutes) of its meetings. These minutes must be made available.
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upon request, to a Ministry of Labour inspector (section 9(22)).

Return to Chapter 4 Index I Return to Contents
The Powers of the Joint Health and Safety Committee The joint health and safety committee has several important rights and responsibilities. IDENTIFY WORKPLACE HAZARDS The main purpose of the committee is to identify workplace hazards, such as machinery, substances, production processes, working conditions, procedures or anything else that can endanger the health and safety of workers (section 9(18)(a)). To a large extent, this purpose is achieved by carrying out inspections of the workplace. The members of the committee who represent workers must choose one of their group to inspect the workplace. This member does not always have to be the same person but should be, if possible, a 'certified' committee member (section 9(23) and (24)). The workplace should be inspected at least once a month. In some cases, this may not be practical. For example, the workplace may be too large and complex to be inspected fully each month. In such a case, the committee should establish an inspection schedule that will ensure that at least part of the workplace is inspected each month and the entire workplace is inspected at least once a year (sections 9(26), (27) and (28)). The committee member who performs the inspection must report to the committee any real or potential hazard facing workers. The committee must consider this information within a reasonable period of time (section 9(30)). A Ministry of Labour inspector can order that the workplace be inspected more frequently than the Act prescribes. OBTAIN INFORMATION FROM THE EMPLOYER For most committees, the employer is likely to be an important source of information. The committee has the power to obtain information from the employer: x about any existing or potential hazards in the workplace (section 9(18)(d)(i)); x about the health and safety experience and work practices and standards in other workplaces of which the employer is aware (section 9(18)(d)(ii)); and x about any workplace testing that is being carried out for occupational health and safety purposes (section 9(18)(e)). In addition, the committee has the right to be consulted about any workplace testing and to have a committee member representing workers present at the beginning of the testing to validate the procedures and/or the results (section 9(18)(f)). MAKE RECOMMENDATIONS TO THE EMPLOYER The committee has the power to make recommendations to the employer and to the workers on ways to
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improve workplace health and safety. For example, the committee could recommend that a new type of hearing protection be given to workers in noisy areas, or that safety training programs be established, or that special testing of the work environment be carried out (sections 9(18)(b) and (c)). The employer must respond to any written recommendations from the committee, in writing, within 21 days. If the employer agrees with the recommendations, the response must include a timetable for implementation. For example, if the employer agrees that a special training program should be established, the response must say when the program will begin to be developed and when it will be delivered. If the employer does not agree with a recommendation, the response must give the reasons for disagreement (sections 9(20) and (21)). INVESTIGATE WORK REFUSALS The committee members who represent workers must designate one of their group to be present at the investigation of a work refusal. (For more information, see Chapter 7, 'The Right to Refuse Work'.) INVESTIGATE SERIOUS ACCIDENTS If a worker is killed or critically injured on the job, the accident is investigated. The members of the committee who represent workers should choose one or more of their group to conduct such an (section 9(31)). This investigation can be part of, or in addition to, an investigation conducted by the employer or the Ministry of Labour. The member(s) chosen to investigate can inspect the actual scene of the accident (but cannot alter it without permission from an inspector) and can also inspect any machine, equipment, substance, etc., that may be connected with the accident. The findings must be reported to the committee and to a director of the Ministry of Labour. OBTAIN INFORMATION FROM THE WORKERS' COMPENSATION BOARD At the committee's request, the Workers' Compensation Board (WCB) must provide an annual summary of information about compensation claims relating to all workplaces of the employer in Ontario (section 12 (1)). This information must include: x x x x x x number of fatalities number of lost-time injuries number of workdays lost number of injuries requiring medical aid but that did not involve lost workdays incidence of occupational illnesses number of occupational injuries. The WCB can include any other information it considers necessary.
When this report is received from the WCB, the employer must post it in the workplace, where it is likely to be seen by the workers. If necessary, it may be posted in more than one area of the workplace, to ensure that all workers see it,
NOTE.' This information can also be requested by the employer, an individual employee, a union or a health and representative.
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Employer's Duty to Co-operate with the Committee The Act places a general duty on the employer to co-operate with and help the joint committee to carry out its responsibilities (section 25(2)(e)). In particular, the employer is required to: x x x x provide any information that the committee has the power to obtain from the employer; respond to committee recommendations, as described earlier; give the committee copies of all orders and reports issued by the Ministry of Labour inspector; and report any workplace deaths, injuries and illnesses to the committee.
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Certified Members of Committees A 'certified' member of a joint committee is a member who has received special training in occupational health and safety and has been certified by the Workplace Health and Safety Agency. He or she plays an important role on the committee and in the workplace, with specific authority and responsibilities.
The requirement to have certified members on joint committees was added when the Act was amended in 1990. This requirement will be phased in, and it is expected to take some time before all joint committees in Ontario have certified members. If there is any question about when the joint committee in your workplace must have certified members, contact your nearest Ministry of Labour office.
In general, all workplaces that are required to have joint committees must also have certified committee members. The only exception is a construction project on which fewer than 50 workers are regularly employed (section 9(13)). Wlio decides which committee members will be certified? The employer is responsible for ensuring that the joint committee has certified members. There is no limit to how many members may be certified, but there must be at least two: one representing workers and one representing the employer. The workers (or the union) who selected the joint committee members also decide which members representing workers are to be certified (section 9(14)). If more than one of the committee members representing workers is certified, the workers or the union must designate one or more of them as being entitled to exercise the rights and duties of certified members (section 9(15)). Similarly, if more than one of the committee members representing the employer is certified, the employer must designate one or more as being able to exercise the rights and duties of certified members (section 9 (16)), In other words, even though a person is a committee member, and has been trained and certified by the agency, he or she does not have the rights and powers of a certified member unless designated, How do committee members become certified? http://www.gov.on.ca-'LAB/ohs/g ohse.htm
The Workplace Health and Safety Agency (see Chapier_iQ) has the authority, under the Act, to certify members and set their training requirements. What rights and duties do certified members have? Because certified members have special training in workplace health and safety, they have special responsibilities in the workplace. Where possible, the certified member who represents workers should conduct the monthly workplace inspections (section 9(24)). He or she should also be present, if possible, at the investigation of a work refusal. A certified member who receives a complaint that dangerous circumstances exist is entitled to investigate the complaint (section 48(1)). Certified members also have the right, under certain circumstances, to order the employer to stop work that is dangerous to a worker. For a complete explanation of this right, see Chapter 8, The Right to Stop Work'. Are certified members paid while they perform their duties? Yes. A certified member who is exercising his or her rights and duties under the Act is considered to be at work. He or she must be paid the regular or premium rate by the employer, whichever is applicable (section 48(2)). The same applies if a committee member is fulfilling the requirements for becoming certified as set by the Workplace Health and Safety Agency (section 9(36)). In the construction industry, however, the agency pays the worker for the time spent to become certified. The agency recovers these costs through assessments levied by the Workers' Compensation Board on all employers in the construction industry.
Worker Trades Committees on Construction Projects In addition to the above rules concerning joint health and safety committees, there are special rules for the establishment and operation of worker trades committees on certain construction projects. What is a worker trades committee? This committee is similar to thejoint health and safety committee, but there are two differences: 1. All members of the worker trades committee are chosen by the workers in those trades, or by their union (section 10(3)). 2. Worker trades committees are required on projects that regularly employ 50 or more workers and are expected to last at least three months (section 10(1)). It is the responsibility of the joint health and safety committee, not of the employer or constructor, to establish the worker trades committee. The joint committee should ensure that all trades are represented (section 10(2)).
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What are the powers of the worker trades committee? The worker trades committee has no special powers. Its purpose is to inform the joint committee about the health and safety concerns of the tradespeople employed on the project (section 10(4)). It may also serve as a forum to resolve problems that arise between trades. The joint committee has the authority to act on the information provided by the worker trades committee. How often must a worker trades committee meet? Are members paid for attending meetings? There is no rule about how often this committee must meet. The joint health and safety committee for the project must decide the maximum period of time for which members of the trades committee are entitled to be paid for attending meetings (section 10(6)). For example, if the joint committee decides that the worker trades committee should meet once a week for an hour, that is the maximum period of time that any member can be paid for attending such meetings. Members of worker trades committees must be allowed the necessary time to attend meetings. They are paid during these meetings as if they were performing their regular jobs. If a premium rate would apply at the time a meeting is held, it must be paid (section 10(5)).
Confidentiality of Information Joint committee members may from time to time come across confidential information. Therefore, the Act requires committee members to observe some basic rules of confidentiality (section 63). Except where allowed under this Act, or as required by another law, committee members: x must not disclose any information about any workplace tests or inquiries conducted under the Act or regulations; x must not reveal the name of any person from whom information is received; x must not disclose any secret manufacturing process or trade information; and x may disclose the results of any medical examinations or tests of workers only in a way that does not identify anyone.
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5. Health and Safety Representatives

The Powers oflhe Health and Safer,: Representative Confidentiality of Information Return to Contents
Not all workplaces are required to have a joint health and safety committee. In small workplaces, a health and safety representative of the workers is required instead. This chapter outlines the provisions of the Act that cover health and safety representatives. A health and safety representative is required at a workplace or construction project where six to 19 workers are regularly employed, and where there is no joint committee (section 8(1)).
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The representative must be chosen by the workers, or by the union if there is one (section 8(5)). Health and safety representatives have essentially the same powers as joint committee members. If you are a health and safety representative, you should read Chapter 4. 'Joint Health and Safety Committees', and also refer to the separate guidejor joint..
The Powers of the Health and Safety Representative A health and safety representative has the power to: IDENTIFY WORKPLACE HAZARDS The health and safety representative has the power to identify workplace hazards. This power is usually exercised by conducting workplace inspections. No matter how small the workplace, the representative must inspect it at least once a month (section 8(6)). If it is not practical, for some reason, to inspect the entire workplace once a month, at least part of it must be inspected monthly, following a schedule agreed upon by the representative and the employer. The entire workplace must be inspected at least once a year (sections 8(7) and (8)). Other workers, as well as the employer, must give the representative any information and assistance needed to carry out these inspections (section 8(9)). OBTAIN INFORMATION FROM THE EMPLOYER The health and safety representative is entitled to the same information available to a joint committee member. Under the Act, the employer must share with the representative any such information that he or she has (sections 8(1 l)(a) and (c)). BE CONSULTED ABOUT WORKPLACE TESTING If the employer intends to do testing of any kind in or about the workplace and related to occupational health and safety, the representative has the right to be consulted before the testing takes place. He or she may also be present at the beginning of such testing (section 8(1 l)(b)). MAKE RECOMMENDATIONS TO THE EMPLOYER The representative has the power to make recommendations to the employer on ways to improve workplace health and safety - the same power given to joint committees. The employer must respond in writing to any written recommendations within 21 days (section 8(12)). INVESTIGATE WORK REFUSALS The health and safety representative should be present at the investigation of a work refusal. (For more information, see Chapter 7. "The Right to Refuse Work'.)
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INVESTIGATE SERIOUS ACCIDENTS If a worker is killed or critically injured on the job, the representative has the right to inspect the scene of the accident and any machine, equipment, substance, etc., that may be connected with the accident. His or her findings must be reported in writing to a director of the Ministry of Labour (section 8(14)). REQUEST INFORMATION FROM THE WORKERS' COMPENSATION BOARD The health and safety representative is entitled to request the same information from the Workers' Cgjnp_ensa.tion_Board that is available to a joint committee member. When this information is received from the WCB, the employer must post it in the workplace, in a location where it is likely to be seen by the workers (section 12). Are representatives paid while performing their duties? Yes. A representative is entitled to carry out inspections and investigations. During this time, he or she must be paid the regular or premium rate, whichever is applicable (section 8(15)).
Confidentiality of Information The health and safety representative has the same duty of confidentiality as that imposed on joint committee members.
6. Duties of Employers and Other Persons

General Duties of Employers Prescribed Duties of Employers Duties of Employers Concerning Toxic Substances Duties ofQyt'iiers Duties of Suppliers Duties of Licensees Duties of Corporate Officers and Directors Notices Required from Employers' Duties of Supervisors Duties ill Constructors Liability of Architects and Engineers Duties of Workers
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The Occupational Health and Safety Act places duties on many different categories of individuals associated with workplaces, such as employers, constructors, supervisors, owners, suppliers, licensees, officers of a corporation and workers. This chanter outlines the duties of these people.
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General Duties of Employers If you are an employer in Ontario who is covered by the Act, you have an obligation to: * instruct, inform and supervise workers to protect their health and safety (section 25(2)(a)); x assist in a medical emergency by providing any information including confidential business information to a qualified medical practitioner who requests the information in order to diagnose or treat any person (section 25(2)(b)); x appoint competent persons as supervisors (section 25(2)(c)). 'Competent person' has a very specific meaning under the Act. He or she must: be qualified ~ through knowledge, training and experience ~ to organize the work and its performance; a> be familiar with the Act and the regulations that apply to the work being performed in the workplace; know about any actual or potential danger to health and safety in the workplace;
NOTE; Employers may appoint themselves as supervisors if they meet all three qualifications (section 25(3)).
x inform a worker, or a person in authority over a worker, about any hazard in the work and train that worker in the handling, storage, use, disposal and transport of any equipment, substances, tools, material, etc. (section 25(2)(d)); x help committees and health and safety representatives to carry out their duties (section 25(2)(e)); x not employ underage workers or knowingly permit underage persons in or near the workplace (sections 25(2)(f) and (g));
NOTE: The definition of'underage'worker or person varies according to the workplace. For example, a person must be at least 18 years old to work in an underground mine; 16years old to work on a construction project or in a logging operation; 15 to work in a factory; and 14 to work in any other workplace, such as a restaurant, store or office. These and other minimum age requirements are set out in various safety regulations under the Act.
x take every precaution reasonable in the circumstances for the protection of a worker (section 25(2) (h)); x post in the workplace a copy of the Occupational Health and Safety Act, as well as explanatory material prepared by the ministry that outlines the rights, responsibilities and duties of workers. This material must be in English and the majority language in the workplace (section 25(2)(i)); x prepare a written occupational health and safety policy, review that policy at least once a year and set up a program to implement it (section 25(2)(j)). For guidance on how to do this, see Appendix A;
NOTE: This provision does not apply to workplaces that regularly employ five or fewer workers.
x post a copy of the occupational health and safety policy in the workplace, where workers will be most likely to see it (section 25 (2)(k)); x provide the joint committee or the health and safety representative with the results of any occupational health and safety report that the employer has. If the report is in writing, the employer must also provide a copy of the relevant parts of the report (section 25(2)(1)); x advise workers of the results of such a report. If the report is in writing, the employer must, on request, make available to workers copies of those portions that concern occupational health and safety (section 25(2)(m)); and x ensure that every part of the physical structure of the workplace can support all loads to which it maybe subjected, in accordance with the Building Code Act and any standards prescribed by the ministry (section 25(1 )(e)). This duty also applies to the self-employed.
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Prescribed Duties of Employers
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The word 'prescribed' appears in many sections of the Act. It means that a regulation must exist in order to put into effect the requirements of that section. Where there is no regulation, the requirements of that section are not in force. Employers and supervisors have an obligation to know which regulations apply to their workplaces. If there is any uncertainty, an inspector should be consulted. Here is a list of duties of employers, under the Act, which may be prescribed. The first seven duties also apply to the self-employed. Wnere there is a regulation, an employer must: x provide and maintain in good condition any prescribed equipment, materials and protective devices (sections 25(1 )(a) and (b)); x ensure that the above are used in accordance with the regulations (section 25(l)(d)); x carry out any measures and procedures that are prescribed for the workplace (section 25(1 )(c)); x keep and maintain accurate records, as prescribed, of the handling, storage, use and disposal of biological, chemical or physical agents (section 26(1 )(c)); x notify a director of the Ministry of Labour of the use or introduction into a workplace of any prescribed biological, chemical or physical agents (section 26(1 )(e)); x monitor, as prescribed, the levels of biological, chemical, or physical agents and keep and post accurate records of these levels (section 26(1 )(f)); x comply with a prescribed standard that limits the exposure of a worker to biological, chemical or physical agents (section 26(1 )(g)); x keep, maintain and make available to workers prescribed records of worker exposure to chemical, biological or physical agents (section 26(1 )(d)); x establish and maintain an occupational health service for workers, as prescribed (sections 26(1 )(a) and (b)); x provide prescribed medical surveillance programs and safety-related medical examinations and tests, for the benefit of workers (sections 26(1 )(h) and (i));
NOTE: Where the law requires a medical surveillance program, employers must offer it to workers. Workers do not have to participate in such a program; they must agree to do so voluntarily (section 28(3)). (Workers must take safety-related medical examinations, such as the ones required for hoist operators.) If a worker participates in a medical surveillance program the employer must pay the costs, including the worker's reasonable travelling costs (section 26(3)). The worker is considered to be at work during the time spent undergoing the examinations or tests and must be paid at the regular or premium rate, whichever is applicable. (Section 26 (3)(c)).
x ensure, where prescribed, that only workers who have taken any prescribed medical examinations, tests or X-rays and who have been found physically fit to work, be allowed to work or be in a workplace (section 26(1 )(j)); x where so prescribed, provide a worker with written instructions on the measures and procedures to be taken for his or her protection (section 26(1 )(k)); and x carry out any prescribed training programs for workers, supervisors and committee members (section
Duties of Employers Concerning Toxic Substances In workplaces where there are toxic or hazardous substances, employers have many specific duties, Thes are described in detail in Chapter 9, Toxic Substances'.
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Notices Required from Employers
NOTE: Self-employed people are required to notify a director of the Ministry of Labour, in writing, if they sustain an occupational injury or illness.
If workplace accidents or illnesses occur, the employer has the following duties to notify certain people: x If a person has been critically injured or killed on the job, the employer must immediately notify an inspector, the joint committee (or health and safety representative) and the union, if there is one. This notice must be by direct means, such as by telephone, telegram or facsimile. Within 48 hours, the employer must also notify, in writing, a director of the Ministry of Labour, giving the circumstances of the occurrence and any information that may be prescribed (section 51(1)). x If an accident, explosion or fire occurs and a worker is disabled or requires medical attention, the employer must notify a director of the Ministry of Labour, the joint committee (or health and safety representative) and the union, if any, within four days of the accident. This notice must be in writing and must contain any prescribed information (section 52(1)). x If an employer is told that a worker has an occupational illness or that a claim for an occupational illness has been filed with the Workers' Compensation Board, the employer must notify a director of the Ministry of Labour, the joint committee (or health and safety representative) and the union, if any, within four days. This notice must be in writing and must contain any prescribed information (section 52(2)). The duty to notify applies not only to current employees but also to former ones (section 52 (3))x Even if no one is hurt, written notice of an accident or unexpected event that could have caused an injury at a construction site or in a mine or mining plant is required from the constructor of the project or owner of the mine or mining plant. This notice must be given to a director of the Ministry of Labour, the joint committee (or health and safety representative) and the trade union, if any, within two days and must contain any prescribed information (section 53).
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Duties of Supervisors The Act sets out certain specific duties for workplace supervisors. A supervisor must: x ensure that a worker complies with the Act and regulations (section 27(1 )(a)); x ensure that any equipment, protective devices or clothing required by the employer is used or worn by the worker (section 27(1 )(b)); x advise a worker of any potential or actual health or safety dangers known by the supervisor (section 27(2)(a)); x if prescribed, provide a worker with written instructions about the measures and procedures to be taken for the worker's protection (section 27(2)(b)); and x take every precaution reasonable in the circumstances for the protection of workers (section 27(2)(c)).
Duties of Constructors Under the Act, constructors are employers, with exactly the same duties.. In addition, constructors are given
the specific responsibility, on projects they undertake, to ensure that: x the measures and procedures in the Act and regulations are carried out (section 23(l)(a)); * every employer and worker on the project complies with the Act and regulations (section 23(l)(b)); and x the health and safety of workers on the project are protected (section 23(1 )(b)). A constructor may also be required to give written notice to a director, containing prescribed information before work begins on a project (section 23(2)). If a constructor is not sure of the obligation to give such a notice, he or she should check with the nearest office of the Ministry of Labour.
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Duties of Owners A person who owns a workplace that is not a construction project also has both general and prescribed duties. An owner must ensure that: x workplace facilities are provided and maintained as prescribed (sections 29(l)(a)(i) and (ii)); x the workplace complies with the regulations (section 29(l)(a)(iii)); x no workplace is constructed, developed, reconstructed or altered except in compliance with the Act and regulations (section 29(l)(a)(iv)); and x workplace drawings, plans or specifications are given to a director of the Ministry of Labour, as prescribed (section 29(1 )(b)). An owner or employer can be required, by regulation, to file with the ministry, before any work is done, complete plans for the construction of or change to a workplace (section 29(3)(a)). These plans, and any subsequent changes in the plans, are reviewed by a ministry engineer to ensure compliance with the Act and regulations. The ministry engineer may require additional information on the plans from the employer or owner (section 29(4)). After the plans have been reviewed by the ministry engineer, they must be available at the workplace for examination by a ministry inspector (section 29(3)(b)). The owner of a mine must update drawings and plans every six months and include details, as prescribed (section 29(2)). DUTIES OF OWNERS AND CONSTRUCTORS CONCERNING DESIGNATED SUBSTANCES Several general duties regarding designated substances apply to all owners of construction projects as well as to constructors. Before beginning any work, the owner must first determine if there are any designated substances present at the project site. If there are, the'owner must prepare a complete list (section 30(1)). This list must be included as part of any tendering information on a project (section 30(2)). Before the owner can enter into a binding contract with a constructor to work on a site where there are designated substances, the owner must ensure that the constructor has a copy of the list (section 30(3)), The constructor must in turn ensure that any prospective contractor or subcontractor has a copy of the list before any binding contract for work on the project can be made (section 30(4)).
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An owner is liable to a constructor and every contractor and subcontractor who suffers any loss or damages as a result of the presence of designated substances that were not on the list. This liability does not apply if the owner could not reasonably have known about the presence of the designated substance(s) (section 30 (5))The constructor is likewise liable for any damages or losses suffered by contractors and subcontractors if they were not informed by the constructor about a designated substance that was on the list prepared by the owner (section 30(6)).
Duties of Suppliers Every person who supplies workplace equipment of any kind under a rental, leasing or similar arrangement must ensure that the equipment complies with the Act and regulations and is in good condition. The supplier must also maintain the equipment in good condition if this is his or her responsibility under the rental or leasing arrangement (section 31(1)).
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Duties of Licensees A licensed area is land on which the licensee is authorized to cut Crown timber (section 24(2)). A licensee must ensure that, in the licensed area: x the measures and procedures in the Act and regulations are carried out; x every employer logging for the licensee complies with the Act and regulations; and x the health and safety of workers employed by those employers are protected (section 24(1)).
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Duties of Corporate Officers and Directors Every officer and director of a corporation must take all reasonable care to ensure that the corporation complies with the Act and regulations as well as with any orders and requirements of Ministry of Labour inspectors, directors and the minister (section 32).
Liability of Architects and Engineers Architects and engineers are considered to be in violation of the Act if they negligently or incompetently give advice or a certification required under the Act and, as a result, a worker is endangered (section 31(2)),
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Duties of Workers Workers also have several general duties under the Act. A worker must take responsibility for personal health and safety insofar as he or she is able. Under the Act, a worker must: x work in compliance with the Act and regulations (section 28(1 )(a)); x use or wear any equipment, protective devices or clothing required by the employer (section 28(1) (b)); x report to the employer or supervisor any known missing or defective equipment or protective device that may be dangerous (section 28(l)(c)); x report any known workplace hazard to the employer or supervisor (section 28(1 )(d)); x report any known violation of the Act or regulations to the employer or supervisor (section 28(l)(d)); x not remove or make ineffective any protective device required by the employer or by the regulations (section 28(2)(a));
NOTE: The only exception to this rule is if one can provide an adequate temporary protective device. Once there is no longer a need to remove the required protective device or to make it ineffective, it must be replaced immediately. For example, it may be necessary to remove a protective device on a saw in order to cut an unusually large piece of material. In such a case, no one may operate the saw until it has a temporary protective device that will prevent injury. After this operation is complete, the saw's regular protective device must be immediately replaced.
x not use or operate any equipment or work in a way that may endanger any worker (section 28(2)(b)); and x not engage in any prank, contest, feat of strength, unnecessary running or rough and boisterous conduct (section 28(2)(c)). Racing powered hand trucks in a warehouse or seeing who can pick up the most boxes are examples of unsafe and unacceptable workplace conduct.
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7. The Right to Refuse Work

The Occupational Health and Safety Act gives a worker the right to refuse work that he or she believes is unsafe. The Act sets out a specific procedure that must be followed in a work refusal. It is important that workers, employers, supervisors and health and safety representatives understand this procedure. Do all workers have the right to refuse unsafe work? Yes, but for some workers this right is limited. Certain workers who have a responsibility to protect public safety cannot refuse unsafe work if the danger in question is a normal part of the job or if the refusal would endanger the life, health or safety of another person. These workers are: x x x x police officers; firefighters; workers employed in correctional institutions; and health care workers employed in workplaces like hospitals, nursing homes, psychiatric institutions, rehabilitation facilities, residential group homes for persons with physical or mental handicaps, ambulance services, first-aid clinics, licensed laboratoriesor in any laundry, food service, power plant or technical service used by one of the above (section 43(2)), The following examples show how
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the right to refuse work applies to the above public sector workers. Example 1 A police officer could not refuse to intervene in a robbery attempt on the grounds that the suspect was armed, and therefore the work dangerous. Nor could the officer refuse to police a particular area or location because it was considered dangerous. Such situations are an inherent part of the job. However, a police officer could, before beginning a routine patrol duty, refuse to do so in a vehicle that had defective brakes. Example 2 A correctional officer could not refuse to enter a jail corridor to intervene in an emergency, such as an altercation between inmates. However, a correctional officer could refuse to participate in a staff training exercise which involved emergency equipment that the officer assessed to be unsafe. Example 3 A firefighter could not refuse to perform a dangerous task while responding to any emergency. A firefighter could, however, refuse to handle firefighting chemicals that were being improperly stored in the stationhouse. Example 4 An experienced medical lab technologist could not, in the course of his or her regular work, refuse to handle a blood sample from a patient with an infectious disease. But the technologist could refuse to test for a highly infectious virus where proper protective clothing and safety equipment are not available. When can a worker refuse to work? A worker can refuse to work if he or she has reason to believe that one or more of the following is true: x Any machine, equipment or tool that the worker is using or is told to use is likely to endanger himself or herself or another worker (section 43(3)(a)). * The physical condition othe workplace or work station is likely to endanger the worker (section 43 ' x Any machine, equipment or tool that the worker is using, or the physical condition of the workplace, is in violation of the Act or regulations and is likely to endanger himself or herself or another worker (section 43(3 )(c)). What happens when a worker refuses unsafe work? The worker must immediately tell the supervisor or employer that the work is being refused and explain why (section 43(4)), The supervisor or employer must investigate the situation immediately, in the presence of the worker and httn^.'www wv.on.ca'LAB/ohs/s ohse.htm 9/20/00
one of the following: x a joint committee member who represents workers, if there is one. If possible, this should be a certified member; or x a health and safety representative, in workplaces where there is no joint committee; or x another worker, who, because of knowledge, experience and training, has been chosen by the workers (or by the union) to represent them. The refusing worker must remain in a safe place near the work station until the investigation is completed (section 43(5)). This interval is known as the 'first stage' of a work refusal. If the situation is resolved at this point, the worker will return to work. What if the refusing worker is not satisfied with the result of the investigation? The worker can continue to refuse the work if he or she has reasonable grounds for believing that the work continues to be unsafe (section 43(6)). At this point, the 'second stage' of a work refusal begins.
NOTE:'Reasonable grounds'for continuing to refuse means that the worker has some objective information that makes him or her believe the work is still unsafe. The worker does not have to be correct in his or her knowledge or belief. For example, the refusing worker may have been told by other workers who have used a lift truck that the brakes sometimes fail.
What happens if a worker continues to refuse to work? The worker, the employer or someone acting on behalf of either the worker or employer must notify a Ministry of Labour inspector, who will then come to the workplace to investigate (section 43(6)). While waiting for the inspector, the worker must remain in a safe place near the work station, unless the employer assigns some other reasonable work during normal working hours. If no such work exists, the employer can give other directions to the worker. If the worker is covered by a collective agreement, any provision in it that covers this situation will apply (section 43(10)). The inspector must decide whether the work is likely to endanger the worker or another person. The inspector's decision must be given, in writing, to the worker, the employer, and the worker representative, if there is one. If the inspector finds that the work is not likely to endanger anyone, the refusing worker is expected to return to work (sections 43(8) and (9)). Can another worker be asked to do the work that was refused? Yes. While waiting for the inspector to investigate and give a decision on the refusal, the employer or supervisor can ask another worker to do the work that was refused. The second worker must be told that the work was refused and why. This must be done in the presence of a committee member who represents workers, or a health and safety representative, or a worker representative chosen because of knowledge, experience and training (sections 43(11) and (12)). The second worker has the same right to refuse as the first worker. Is a worker paid while refusing to work? Although the Act does not cover this point, the Ontario Labour Relations Board has ruled that a refusing worker is considered to be at work during the first stage of a work refusal and is entitled to be paid at his or her appropriate rate.
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A person acting as a worker representative during a work refusal is paid at either the regular or the premium rate, whichever is applicable (section 43(13)), Can an employer discipline a worker for refusing to work? No. A worker has the duty to work in accordance with the Act and the regulations and has the right to seek their enforcement. The employer is not allowed to penalize, dismiss, discipline, suspend or threaten to do any of these things to a worker who has obeyed the law (section 50(1)). This also applies if a worker has given evidence at an inquest or a prosecution under the Act or the regulations. However, this provision does not apply if the work refusal was made in bad faith, or if the worker continues to refuse after the Ministry of Labour inspector finds that the work is not likely to endanger the worker. What can a worker do if disciplined? Any worker who believes he or she was unfairly disciplined by the employer may file a complaint with the ^ (OLRB). If the worker belongs to a union, he or she can choose instead to have the complaint dealt with under the grievance procedure in the collective agreement (section 50(2)). Before doing either of the above, the worker or the employer has the option of contacting the Ministry of Labour, and an inspector will investigate. There is no requirement to contact the ministry. In such cases, the inspector does not play an enforcement role, but is more of a conciliator. The inspector will discuss the alleged reprisal with the workplace parties and ensure that both the employer and the worker are aware of their duties and rights under the Act. The inspector cannot issue orders in an investigation of an alleged reprisal by the employer. If the complaint is taken to the OLRB, the employer must prove that the discipline or other penalty imposed on the worker was the result of an improper refusal (section 50(5)). The OLRB has the power to remove or change any penalty imposed on the worker (section 50(7)).
NOTE: Workers who are covered by a code of discipline under the Police Services Act must have any complaint about unfair discipline dealt with under that Act (section 50(8)).
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8. The Right to Stop Work

Dangerous Circumstances Limitations on the Right to Slop Work Joint Right lo Stop Work Individual Right to Stop Work Responsible Use of the Right lo Stop Work Return lo Contents
The Occupational Health and Safety Act allows dangerous work to be stopped.
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In most cases, it takes two certified members to direct an employer to stop dangerous work (joint stoppage). One must be a certified member representing workers; the other, a certified member representing the employer. In some special cases, a single certified member may have this right. This chapter explains how and when work can be stopped.
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Dangerous Circumstances Work can be stopped only in 'dangerous circumstances' (section 44(1)). This means a situation in which all of the following are true: x the Act or the regulations are being violated; and x the violation poses a danger or a hazard to a worker; and x any delay in controlling the danger or hazard may seriously endanger a worker.
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Limitations on the Right to Stop Work The right to stop dangerous work does not apply to police, firefighters or those employed in correctional institutions (section 44(2)(a)). The right to stop work does not apply to the following types of workplaces if a work stoppage would directly endanger the life, health or safety of another person (section 44(2)(b)): x x x x x hospitals, nursing homes, psychiatric institutions, rehabilitation facilities or similar institutions; residential group homes for persons with physical, mental or behavioural handicaps; ambulance services or first-aid clinics or stations; medical testing laboratories; any laundry, food service, power plant or technical service or facility used by one of the above. See section 43(2)(d) of the Act for a complete list of workplaces.
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Joint Right to Stop Work If a certified member has reason to believe that dangerous circumstances exist, he or she may ask a supervisor to investigate. The supervisor must do so promptly and in the presence of the certified member who made the request. This certified member may be one representing either the workers or the employer (section 45(1)). What happens if the certified member is not satisfied with the supervisor's investigation? If the certified member believes that dangerous circumstances still exist, he or she may ask another certified member to investigate (section 45(2)). The second certified member must do so promptly and in the
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presence of the first certified member (section 45(3)), The second certified member must represent the other workplace party. For example, if the first certified member represents workers, the second must represent the employer. In prescribed instances, a certified member who represents the employer but who is not available at the workplace may designate another person to act for him or her in a situation involving dangerous circumstances (section 45(9)). What happens if both certified members agree that dangerous circumstances exist? The certified members can direct the employer to stop the work or to stop using any part of the workplace or any equipment, machinery, tools, etc. (section 45(4)). The employer must do so immediately, in a way that does not endanger anyone (section 45(5)). After taking steps to remedy the dangerous circumstances, the employer can request the certified members who issued the stop-work direction, or an inspector, to cancel it (section 45(7)). Only the certified members who issued the direction can jointly cancel it, unless a ministry inspector cancels it (section 45(8)). What if the certified members do not agree with each other that dangerous circumstances exist? If the certified members disagree, work cannot be stopped. However, either certified member may ask a ministry inspector to investigate. Following the investigation, the inspector will give a written decision to both certified members (section 45(6)).
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Individual Right to Stop Work The Act permits an individual certified member, in special cases, to stop work in dangerous circumstances. This individual right to stop work is granted by an official known as the health and safety adjudicator. APPLICATION TO THE ADJUDICATOR If any certified member in the workplace, or a ministry inspector has reason to believe that the joint right to stop work will not be sufficient to protect the workers from serious risk to their health or safety, he or she may apply to the adjudicator for a declaration against the employer (section 46(1)). Any person applying to the adjudicator must notify both the employer and a director of the Ministry of Labour, in writing (section 46(2)). At any time after the application has been made, the minister may appoint an inspector to try to reach a settlement between the applicant and the employer (section 46(4)). ROLE OF THE ADJUDICATOR The adjudicator must determine if the employer has failed to protect the health and safety of workers. In
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making a finding, the adjudicator is guided by criteria that are prescribed in a regulation (section 46(6)). If the adjudicator finds that the procedure for joint stoppage of dangerous work is not sufficient to protect the workers, he or she may do one or both of the following: K declare that the employer is subject to the procedure for individual stoppage of dangerous work (explained below) for a specified period (section 46(5)(a)); and/or x recommend to the minister that an inspector be assigned, for a specified period, to oversee the health and safety practices of the employer. The inspector can be assigned on a part-time or full-time basis (section 46(5)(b)). If an inspector is assigned to a workplace, the employer must reimburse the government for the wages, benefits and expenses of the inspector (section 46(8)). The decision of the adjudicator on an application is final (section 46(7)). PROCEDURE FOR THE INDIVIDUAL RIGHT TO STOP DANGEROUS WORK This procedure applies to an employer against whom the adjudicator has issued a declaration. It also applies to an employer who has advised the joint committee, in writing, that he or she voluntarily adopts the following procedure (section 47(1)). If a certified member finds that dangerous circumstances exist, he or she can direct the employer to stop work or to stop using any part of the workplace or any equipment, machinery, tools, etc. (section 47(2)). The employer must do so immediately, in a way that does not endanger anyone (section 47(3)). After stopping the work, the employer must promptly investigate, in the presence of the certified member (section 47(4)). After taking steps to remedy the dangerous circumstances, the employer can ask the certified member, or an inspector, to cancel the direction (section 47(6)). What happens if the certified member and the employer do not agree that dangerous circumstances exist? In such a case, either party may ask an inspector to investigate. After conducting the investigation, the inspector will issue a written decision (section 47(5)). Either the certified member or an inspector can cancel a stop-work direction (section 47(7)).
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Responsible Use of the Right to Stop Work Certified members are accountable for the responsible use of their authority to stop work in dangerous circumstances. They may be named in a complaint to the adjudicator that they recklessly or in bad faith exercised, or failed to exercise, their power to stop dangerous work. Who may make a complaint about a certified member? Any worker in the workplace, an employer or a representative of the union (if there is one) can file a htrp://\vww.sov.on.ca/LAB/ohs/s ohse.htm
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complaint about a certified member (section 49(1)). The complaint must be filed not later than 14 days after the event that is the subject of the complaint (section 49(2)). For example, an employer might complain to the adjudicator about a worker certified member who refuses to agree with the employer certified member to cancel a stop-work direction after adequate remedial action had been taken. Or a union representative may complain that an employer certified member refused to agree to a stop-work direction in circumstances that were clearly dangerous. In either case, the complaint goes directly to the adjudicator. What can the adjudicator decide? The adjudicator decides whether the complaint is valid and can make any order that he or she considers appropriate. This decision could include an order to de-certify the certified member (section 49(4)). The decision of the adjudicator is final (section 49(5)). Are certified members paid while carrying out their duties? The time spent by a certified member in carrying out duties is considered worktime. This includes any time spent in a stop-work situation or a work refusal. The certified member must be paid by the employer at the applicable rate (section 48(2)). Can a certified member be disciplined by the employer? Certified members are protected from employer reprisals in exactly the same way as workers who refuse unsafe work. If the member has acted in compliance with, or has sought the enforcement of, the Act or regulations, or has given evidence in a proceeding about the enforcement of the Act, he or she is protected from employer reprisals of any kind.
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9. Toxic Substances
The Control of Toxic Substances AVvt- Substances The Right to Know About Toxic Substances Return to Contents
A toxic substance is a biological, chemical or physical agent (or a combination of such agents) whose presence or use in the workplace may endanger the health or safety of a worker. Throughout the Act and regulations, the terms 'hazardous substances', 'hazardous materials' or 'hazardous agents' are all used to describe toxic substances. You can interpret any of these terms to mean 'toxic substances', The parts of the Act that deal with toxic substances have two purposes. One is to ensure that worker exposure to toxic substances is controlled. The other is to ensure that toxic substances in the workplace are clearlv identified and that workers receive enough information about them to be able to handle them safely.
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The Act also controls the introduction of new substances into the workplace. As well, it gives the general public access to information about toxic substances used by industries in their community. All of these requirements relating to toxic substances are described in this chapter.
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The Control of Toxic Substances There are three ways that worker exposure to toxic substances can be controlled under the Act. 1. DESIGNATED SUBSTANCE REGULATIONS The Act allows a toxic substance to be 'designated', and its use in the workplace to be either prohibited or strictly controlled. Designation is reserved for substances known to be particularly hazardous. Eleven substances have been designated under the Act, including asbestos, lead, mercury and arsenic. Separate regulations have been passed for each one. hi general, each regulation sets out the amount of the substance that workers can be exposed to in a given time period, and the ways to both control and measure the substance in the workplace. More information on designated substances appears in a separate guide, available from the Ministry of Labour and the Publications Ontario. 2. REGULATION TO CONTROL EXPOSURE TO BIOLOGICAL OR CHEMICAL AGENTS The Act permits atmospheric conditions in the workplace to be controlled. The Regulation to Control Exposure to Biological or Chemical Agents sets limits in workplace air for approximately 600 toxic substances. 3. 'SECTION 33' ORDER Section 33 of the Act permits a director to issue an order to an employer to either prohibit or restrict the presence, use or intended use of a toxic substance in the workplace (section 33(1)). For example, the director may order that a toxic substance can be used only if the workers exposed to it wear specified protective equipment or receive exposure to it only for a specified period of time. Section 33 orders can be issued to the self-employed. What happens when a section 33 order is issued? The employer must comply immediately with the order. The employer mast also give a copy of the order to die health and safety committee or representative and, if there is one. the trade union.
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The employer must also post a copy of the order in the workplace, where it is most likely to be seen by the workers who may be affected by the toxic substance (section 33(3)). Can an employer appeal a section 33 order? Yes. Within 14 days of the order being issued, an appeal in writing can be made to the minister. A worker or trade union can also appeal the director's order (section 33(4)). The minister can appoint a person to hear the appeal (section 33(5)). This person has the power to suspend the order until a decision on the appeal has been made (section 33(9)). He or she can also confirm or change in any way the order of the director. His or her decision is final (section 33(7)). Section 33 orders do not apply to designated substances (section 33(11)).
New Substances The introduction of new substances into the workplace is controlled. Under the Act, a new substance is a biological or chemical agent that: has not been used in any other workplace in Ontario; or is not included in either the Chemical Substances Initial Inventory of May 1979 or the Cumulative Supplement of June 1980, published by the Environmental Protection Agency of the United States (section 34(3)). What must happen if a new substance is going to be made or used in an Ontario workplace? Anyone, including a self-employed person, who intends to manufacture, distribute or supply a new substance for commercial or industrial use in an Ontario workplace, must first notify a director in writing. This notice must identify the properties and ingredients of the new substance (section 34(1)). This notice is not required if the substance is going to be manufactured, distributed or supplied for the purposes of research and development. If the director is of the opinion that the introduction of the new substance may endanger the health or safety of workers, he or she can order the manufacturer, supplier or distributor of the substance to pay for an expert assessment of the substance (section 34(2)).
The Right to Know About Toxic Substances The Act gives workers the right to know about toxic substances in the workplace. This right has always been part of the Act, but it was significantly expanded in 1988, when the Act was amended as part of the Canada-wide implementation of the Workplace Hazardous Materials Information System (WHM1S).
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The sections of the Act that implement WHMIS use the term 'hazardous materials' instead of toxic substances. Therefore, for the remainder of this chapter, which outlines the general duties of the employer under WHMIS, the term 'hazardous materials' is used. Detailed requirements are set out in a separate WHMIS Regulation. More information about the WHMIS requirements in the Act and regulations appears in a separate guide, available from the Ministry .of JLabour and the Pui>JicMons_Ojiiario. EMPLOYER'S RESPONSIBILITIES CONCERNING HAZARDOUS MATERIALS An employer in charge of a workplace where hazardous materials are used has three main duties: to identify hazardous materials, to provide Material Safety Data Sheets and to train workers. IDENTIFYING HAZARDOUS MATERIALS The employer must ensure that all hazardous materials in the workplace are identified in a prescribed way (section 37(1 )(a)). In most cases, a detailed label is required on a container of a hazardous material. In some cases, however, a less formal means of identification is permitted. The WHMIS Regulation sets out how and when hazardous materials must be identified. For hazardous materials that the employer buys from a supplier, the label/identification must be provided by the supplier. The employer is required to notify the Ministry of Labour in writing if, after making reasonable efforts such as telephoning and/or writing the supplier, he or she is unable to obtain proper labels (section 37 (4)). No one in the workplace can remove or deface the identification of a hazardous material (section 37(2)). Where the identification of a hazardous material is in writing (rather than represented by colour coding or symbols, for example), it must be in English and any other prescribed languages (section 37(l)(c)). PROVIDING MATERIAL SAFETY DATA SHEETS The employer has a general duty to either obtain or prepare unexpired material safety data sheets (MSDSs) for hazardous materials in the workplace (section 37(l)(b)). 'Unexpired' means dated within the past three years (section 37(5)). The information that an MSDS jnust include, along with some exemptions to this general duty, is defined by regulation. For a hazardous material that the employer buys from a supplier, the MSDS must be provided by the supplier. If an employer is unable to obtain an MSDS from a supplier of a hazardous material, the employer is required to notify, in writing, a director of the Ministry7 of Labour (section 37(4)). For a hazardous material that the employer produces on site for use in the workplace, the employer must prepare the MSDS, The employer is required to make copies of MSDSs readily available to workers, to the joint committee or to the health and safety representative, if any (section 38(1)). Wider distribution of MSDSs is discussed later
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in this chapter, in the section 'Public Access to Material Safety Data Sheets'. The employer can make MSDSs available to workers on a computer terminal, provided the terminal is kept in working order and that appropriate computer training is given to exposed workers, to joint committee members or to the health and safety representative, if there is one. The employer must also provide workers with paper copies of MSDSs, on request (section 38(6)). TRAINING WORKERS The employer has a general duty to train workers who are exposed or are likely to be exposed to a hazardous material on the job (section 42(1)). Specific training requirements are set out in the WHMIS Regulation. The employer must consult either the joint committee or a worker health and safety representative, if there is one, about the content and delivery of training programs (section 42(2)). At least once a year, the employer, in consultation with the joint committee or a health and safety representative, must review the worker training program and determine the workers' familiarity with the information (section 42(3)). This review should take place more often than once a year if the employer, on the advice of the committee or representative, thinks it necessary (section 42(4)(a)). A more frequent review is also required if there is a change at the workplace that may affect the health or safety of a worker (section 42(4)(b)). The requirement for a review of the training program is not an automatic requirement to retrain workers. The review is meant to identify whether updating of the training program and retraining of workers are necessary. ASSESSMENT OF BIOLOGICAL AND CHEMICAL AGENTS The Act places a general duty on the employer to determine whether a biological or chemical agent produced for use in the workplace is a hazardous material (section 39). Procedures are set out in the WHMIS Regulation. In the Act and the WHMIS Regulation, the process of determining whether a material produced in the workplace is hazardous is called an 'assessment'. The assessment should be in writing and a copy made available to workers as well as given to the joint committee or a worker health and safety representative, if there is one (section 39(2)). Employers subject to any of Ontario's designated substance regulations may be familiar with the term 'assessment'. The term has a different meaning in the WHMIS Regulation than in the designated substance regulations. Under WHMIS, an assessment refers only to deciding whether a product produced in the workplace is a hazardous material. In the designated substance regulations, an assessment refers to evaluating worker exposure to the designated substance. PUBLIC ACCESS TO MATERIAL SAFETY DATA SHEETS The Act provides for the distribution of MSDSs outside the workplace. Specifically, the following can request copies of MSDSs from the employer: x the medical officer of health x the local fire department
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% the Ministry_o.f Labour It is through the medical officer of health that the public has access to MSDSs. Any member of the public has the right to go to his or her local medical officer of health and ask to see a copy of any or all MSDSs for a workplace within the public health unit served by the officer. If the medical officer of health does not have available the pertinent MSDSs, he or she must obtain them from the employer (sections 38(2) and (3)). The medical officer of health cannot disclose the name of any person asking to see an MSDS (section 38 (4)).
INVENTORY OF HAZARDOUS SUBSTANCES

The Act places a general duty on employers to make an inventory of all hazardous materials and physical agents in the workplace, as prescribed by regulation (section 36(1)). At present, no regulation exists that specifies what information should be put in an inventory. Therefore, until such a regulation is passed, employers do not have to prepare inventories of hazardous materials in the workplace. FLOOR PLANS The Act places a general duty on the employer to prepare a floor plan showing the names and locations of hazardous materials, as prescribed by regulation (section 36(7)). At present, there is no regulation requiring floor plans, which means that employers do not have to prepare them until such a regulation is passed. CONFIDENTIAL BUSINESS INFORMATION The Act protects confidential business information (section 40). The employer can file a claim with the 'claims board1 to be exempted from disclosing information that is normally required on a label or MSDS if the employer believes it to be confidential business information. The 'claims board' referred to in the Act is the Hazardous Materials Information Review Commission, which is an agency of the federal government. Most of the requirements covering confidential business information are set out in other acts and regulations the Hazardous Materials Information Review Act and regulations, the Controlled Products Regulation and the Ontario WHMIS Regulation. For a full understanding of how such information is treated under occupational health and safety law, one must refer to these acts and regulations. A brief explanation of the requirements in these laws appears in the Ministry of Labour's Guide to the WHMIS Legislation. Detailed information is available from: The Hazardous Materials Information Review Commission.. Suite 400, 66 Slater Street, Ottawa, Ontario K1A OC9 Telephone: (613) 993-4331. HAZARDOUS PHYSICAL AGENTS The requirements for labels, material safety data sheets and training apply to chemical and biological agents only, not to physical agents. Physical agents are things like noise, heat, cold, vibration and radiation. The Act allows for regulations to be passed that would require both the suppliers of equipment that produces
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a hazardous physical agent and the employers who use such equipment to provide specific information about the agent (section 41). At present, no such regulation exists. There is, however, a general duty on the employer to acquaint a worker and a supervisor with any hazard related to a physical agent in the workplace.
NOTE: The provisions of the Act covering identification of hazardous materials, MSDSs, assessments, public access to MSDSs, inventories, floor plans, trade secrets and hazardous physical agents also apply to self-employed persons.
10. Workplace Health and Safety Agency

Certification ut'Joint Committee Members Education and Training Health and Safety Training Centres. Clinics and Safety Associations Employer Accreditation Other Functions Small Business Advisory Commitlee Return to Contents
The Workplace Health and Safety Agency was established in 1990 to give the workplace parties a greater share in the direction of training, consultative work, promotion and research in support of occupational health and safety in Ontario (section 13(1)). The agency is jointly run by representatives of management and labour (section 13(2)). The joint structure of the agency reinforces one of the main principles underlying the Act: the need for a partnership among the workplace parties in order to improve occupational health and safety. The main functions of the agency are outlined below.
Certification of Joint Committee Members The agency has the responsibility to set the requirements or standards that must be met in order for a joint committee member to become certified (section 16(l)(a)). In addition, the agency has the power to set up and run the certification process, including the training and certification of joint committee members (sections 16(l)(b) and (c)).
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Education and Training The agency has the authority to develop, deliver and fund training programs related to occupational health and safety. In doing so. the agency may work with other organizations, such as community colleges, safetyassociations and worker training centres (sections 16(l)(d) and (e)).
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The agency also has the authority to fund and set standards for first-aid training (section 16( l)(h)),
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Health and Safety Training Centres, Clinics and Safety Associations The agency has the power to oversee the operation of any health and safety clinic, training centre and accident prevention association prescribed by regulation (section 16(l)(n)). It can also provide grants or funds to any of these organizations (section 16(l)(o)).
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Employer Accreditation The agency can accredit employers with successful health and safety programs. It can also revoke the accreditation if an employer does not continue to meet the standards for accreditation set by the agency (sections 16(l)(i) and (]))
Other Functions Other functions of the Workplace Health and Safety Agency are: x to fund occupational health and safety research (section 16(l)(g)); x to advise the Minister of Labour about matters related to occupational health and safety (section 16(1) (m)); and x to promote public awareness of occupational health and safety (section 16(l)(f)).
Small Business Advisory Committee The Act requires the agency to set up an advisory committee that has equal numbers of representatives from management and labour in the small business community (section 16(7)). The purpose of this committee is to advise the agency on cost-effective ways to carry out training in small businesses.
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11. Enforcement
Insoecior's Orders
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Workplace inspections are carried out to ensure compliance with the Act and regulations and to ensure that the internal responsibility system is working. Inspections also provide the workplace parties with access to the special knowledge and expertise in occupational health and safety available from the Ministry of Labour, through inspectors. This chapter describes how Ontario's occupational health and safety laws are enforced. How often are inspections conducted? It depends on the type of workplace, its size and its past record of health and safety. For example, construction projects may be inspected every three or four weeks; a factory may be inspected as problems arise; and a mine may be inspected about three times a year. Inspections may also be conducted in response to a specific complaint about a workplace. Such complaints are kept confidential. The inspection involves a thorough examination of the physical condition of the workplace by the inspector, who is usually accompanied by both employer and worker representatives. What are the powers of an inspector? To carry out his or her duties, the inspector has the authority to: x enter any workplace without a warrant or notice (section 54(1 )(a)); x question any person, either privately or in the presence of someone else, who may be connected to an inspection, examination or test (section 54(1 )(h)); x handle, use or test any equipment, machinery, material or agent in the workplace and take away any samples (sections 54(1 )(b) and (e)); x look at any documents or records and take them from the workplace in order to make copies (sections 54(l)(c)and(d));
NOTE: The inspector must provide a receipt for the removed documents and return them promptly after making copies.
x take photographs (section 54(1 )(g)); x require that any part of a workplace, or the entire workplace, not be disturbed for a reasonable period of time in order to conduct an examination, inspection or test (section 54(1 )(i)); x require that any equipment, machinery or process be operated or set in motion or that a system or procedure be carried out that may be relevant to an examination, inquiry or test (section 54(l)(j)); x look at and copy any material concerning a worker training program (section 54(1 )(p));
NOTE: An inspector also has the right to attend any training program.
x direct a joint committee member representing workers, or a health and safety representative, to inspect the workplace at specified intervals (section 55); x seize anything that is either given to the inspector or is in plain view, if the inspector believes it is evidence of a violation of the Act or regulations (section 56(1));
NOTE: The inspector can either remove the item seized or leave it at the workplace. He or she must tell the person from whom it was taken the reason for the seizure and provide a receipt. The inspector must also bring the evidence seized before a provincial judge or justice of the peace. If that is not possiblefor example, in the case of a seized bulldozerthe
inspector must inform a judge or justice of the seizure. x require the employer, at his or her expense, to have an expert test and provide a report on any equipment, machinery, materials, agents, etc. (section 54(l)(f)); x require the employer, at his or her expense, to have a professional engineer test any equipment or machinery and verify that it is not likely to endanger a worker (section 54(l)(k)); and stop the use of anything, pending such testing (section 54(1 )(1));
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x require an owner, constructor or employer to provide, at his or her expense, a report from a professional engineer that assesses the structural soundness of a workplace (section 54(l)(m)); M require the owner of a mine to provide, at his or her expense, an official report from a professional engineer that the ground stability, mining methods and support or rock reinforcement are such that a worker is not likely to be endangered (section 54(1 )(n)); ss require an employer, manufacturer, producer, importer, distributor or supplier to provide information about any process or agent used in a workplace, or intended to be used there, and about the manner of its use, including any information on: the ingredients, composition and properties of the agent; the toxicological effects of the agent; the effects when exposed to skin, when inhaled or when ingested; the protective and emergency measures that are or will be used in the event of exposure; and the effect of the use, transport and disposal of the agent (section 54(1 )(o)). Who can accompany the inspector? In addition to persons selected by the employer, a worker representative should accompany the inspector. This person may be a worker member of the joint committee, a health and safety representative, or another knowledgeable and experienced worker (selected by the union, if there is one) (section 54(3)). This worker is considered to be at work during the inspection and must be paid at the applicable rate of pay. If there is no such worker representative, during the inspection the inspector must talk to a reasonable number of workers about their health and safety concerns (section 54(4)). The inspector can also be accompanied by a person with special, expert or professional knowledge. For example, an inspector may bring an engineer into a workplace to test machinery for purposes of operator safety (section 54(1 )(g)).
NOTE: Any information obtained from the workplace by an inspector, or by anyone accompanying the inspector, is considered confidential. It cannot be disclosed to anyone unless it is necessary to do so under the Act, the regulations or some other law.
EVERYONE IN THE WORKPLACE IS EXPECTED TO CO-OPERATE Every person must do everything in his or her power to assist an inspector in the performance of his or her duties under the Act (section 62(1)). It is a violation of the Act to interfere in any way with an inspection. This includes giving false information, failing to give required information or interfering with any monitoring equipment left in the workplace.
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Inspector's Orders The inspector prepares a report and may make recommendations for improved health and safety practices. Where there .are violations of the Act or the regulations, the inspector will issue written orders to the employer to comply with the law within a certain time period or, if the hazard is imminent, to comply immediately. An inspector's order can require the empioyer to submit a plan to the ministry, specifying when and how he or she will comply with the order.
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Where an order has been made to correct a violation of the Act or regulations, and the violation in question is dangerous to the health or safety of a worker, the inspector may also order that: x any place, equipment, machinery, material, process, etc., not be used until the violation has been corrected (section 57(6)(a)); M the work be stopped (section 57(6)(b)); x the workplace be cleared of workers and access to the workplace be prevented until the hazard is removed (section 57(6)(c)). No worker can be required or permitted to enter the workplace except to remove the hazard, and then only if the worker is protected from the hazard (section 58); any hazardous chemical, physical or biological agent not be used (section 57(8)). Where the inspector has stopped work, the employer may resume work, or the use of any equipment, machinery, etc., before a further inspection under the following two conditions: the employer has notified an inspector that the order has been complied with; and a joint committee member representing workers or a health and safety representative advises an inspector that, in his or her opinion, the order has been complied with (section 57(7)). EMPLOYER'S NOTICE OF COMPLIANCE WITH AN ORDER If an inspector has issued an order to an employer to remedy a violation of the Act or regulations, the employer must send written notification to the ministry within three days of when the employer believes the order has been complied with (section 59(1)). This notice must be signed by the employer. It must also be accompanied by a signed statement from a worker member of the joint committee or a health and safety representative, indicating that he or she agrees or disagrees with the employer's notice of compliance with the order (section 59(2)(a)). The committee member or representative can, for any reason, decline to sign such a statement. One reason might be that the member or representative may feel that he or she cannot properly evaluate the employer's compliance with the order. In such a case, the employer must submit, along with the compliance notification, a statement that the member or representative declined to sign the statement of agreement or disagreement (section 59(2)(b)). The employer must post copies of both the notice of compliance and the original order in a place where they are most likely to be seen by workers. The notice must appear for 14 days (section 59(3)). The employer's notice of compliance to the ministry does not mean that compliance with an order has been achieved. This can be determined only by an inspector (section 59(4)). POSTING ORDERS AND REPORTS IN THE WORKPLACE When an inspector issues an order or a report of the inspection, a copy of the order or report must be posted in the workplace, where it is most likely to be seen by the workers. A copy must also be given to either the joint health and safety committee or the health and safety representative (section 57(10)). Can an inspector's orders be appealed? Yes, Anyone, including a worker or a union, who is affected by an inspector's order can appeal to the occupational health and safety adjudicator within 14 days of the order being issued (section 61(1)). One can also appeal an inspector's decision not to issue an order (section 61(5)),
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.An appeal to the adjudicator can be made orally, in writing or by telephone. However, the adjudicator can require that, before the appeal is heard, the grounds for the appeal be presented in writing (section 61(2)), The adjudicator will hear and make a decision on the appeal as promptly as possible under the circumstances. The adjudicator has the power to suspend an inspector's order until a decision on the appeal has been made. In making a decision, the adjudicator has all the powers of an inspector and can uphold the order of the inspector, rescind it or issue a new order. The decision of the adjudicator is final.
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Workplace Investigations What is an investigation? When a workplace is the site of a serious or fatal accident, an unusual occurrence or a refusal to work, an investigation may be conducted. Investigations are conducted by a ministry inspector, who is normally accompanied by a representative of the employer and a representative of the workers. While conducting an investigation, an inspector has all of the powers described earlier in this chapter. Everyone in the workplace is required to cooperate with an inspector during an investigation. THE SCENE OF A CRITICAL OR FATAL ACCIDENT If a person is critically injured or killed at a workplace, no person can alter the accident scene in any way without the permission of an inspector. This does not apply if it is necessary to disturb the scene in order to: K save a life or relieve human suffering; x maintain an essential public utility service or public transportation system; or x prevent unnecessary damage to equipment or other property (section 51(2)).
Offences and Penalties The ministry may prosecute any person for a violation of the Act or the regulations, or for failing to comply with an order of an inspector, a director or the minister (section 66(1)). In deciding whether to prosecute, the ministry will take into account the seriousness of the offence and whether there have been repeated violations or ignored orders.
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If convicted of an offence under the Act, an individual can be fined up to $25,000 and/or imprisoned for up to 12 months. The maximum fine for a corporation convicted of an offence is $500,000 {sections 66(1) and (2))Return to Chapter 11 Index | Return 10 Cements
Appendices
Ayyendix Ahio\\' to Prepare an Occupational Health and Safely Policy Appendix B-Ri-jrulanons Made lender the Occupational Health and Safety Ac! Appendix CMinisin' of Labour Offices Return to Contents
Appendix A - How to Prepare an Occupational Health and Safety Policy

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A policy statement by senior management is an effective way to communicate the organization's commitment to worker health and safety. Senior management attitudes, relationships between management and labour, community interests and technology all combine to play a part in determining how health and safety are viewed and addressed in the workplace. Workplaces with exceptional health and safety records have established a clear line of responsibility for correcting health and safety concerns. This action enhances working relationships between management and labour. Under the Act, an employer must prepare and review at least annually a written occupational health and safety policy, and must develop and maintain a program to implement that policy (section 25(2)(j)). A clear, concise policy statement should reflect management's commitment, support and attitude to the health and safety program for the protection of workers. This statement should be signed by the highest level of management at the workplace, thus indicating senior management commitment. An example of a good health and safety policy follows: Health and Safety Policy Management of is vitally interested in the health and safety of its employees. Protection of employees from injury or occupational disease is a major continuing objective. will make every effort to provide a safe, healthy work environment. All supervisors and workers must be dedicated to the continuing objective of reducing risk of injury. _, as employer, is ultimately responsible for worker health and safety. As president (or owner/operator, chairperson, chief executive officer, etc.) of _, I give you my personal promise that every reasonable precaution will be taken for the protection of workers. Supervisors will be held accountable for the health and safety of workers under their supervision.
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Supervisors are responsible to ensure that machinery and equipment are safe and that workers work in compliance with established safe work practices and procedures. Workers must receive adequate training in their specific work tasks to protect their health and safety, Every worker must protect his or her own health and safety by working in compliance with the law and with safe work practices and procedures established by the company. It is in the best interest of all parties to consider health and safety in every activity. Commitment to health and safety must form an integral part of this organization, from the president to the workers. Signed: President In addition to preparing a health and safety policy like the one above, the employer must also have a program in place to implement that policy. This program will vary, depending upon the hazards encountered in a particular workplace. Program elements may include all or some of the following: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Worker training (e.g., new employees, WHMIS, new job procedures) Workplace inspections and hazard analysis Analysis of the accidents and illnesses occurring at the workplace A health and safety budget A formal means of communication to address promptly the concerns of workers Lock-out procedure Machine guarding Material-handling practices and procedures Maintenance and repairs Housekeeping Protective equipment Emergency procedures First-aid and rescue procedures Electrical safety Fire prevention Engineering controls (e.g., ventilation)
This is not a comprehensive list.

Return to Contents
Appendix B--Regulations made under the Occupational Health and Safety Act Revised Statutes of Ontario, 1990, Chapter 0.1 as amended
Return lo Contents
April 23, 1999 A. Safety Regulations Adoption of Training Requirements: 0, Reg. 784/93, as amended by 0. Reg. 231/95 and 0. Reg. 270/96.
http://'ww\v.gov.on.ca/LAB/ohs/g_ohse.htm
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Industrial Establishments: R.R.O. 1990, Reg. 851, asamended by 0, Reg. 516/92, 0. Reg. 630/94, 0. Reg, 230/95 and 0. Reg. 450/97. R.R.O. 1990, Reg. 854, as amended by 0. Reg. 583/91, 0. Reg. 584/91, 0. Reg. 171/92, 0. Reg. 384/92, 0. Reg. 571/92, 0. Reg. 693/92, 0. Reg. 60/94, 0. Reg. 779/94, 0. Reg. 68/96 and 0, Reg. 272/97. R.R.O. 1990, Reg. 859, as amended by 0. Reg. 523/92. R.R.O. 1990, Reg. 834.
*Mines and Mining Plants:
Window Cleaning: Critical Injury Defined:

(for reference see Construction Projects. Industrial Establishments. Mines and Mining Plants Window Cleaning above)
Diving Operations: Firefighters-Protective Equipment: Health Care and Residential Facilities: Oil and Gas-Offshore: Roll-Over Protective Structures: Teachers: University Academics and Teaching Assistants: B. Designated Substances Acrylonitrile: Arsenic: Asbestos:
0. Reg. 629/94. 0. Reg. 714/94 as amended by 0. Reg. 449/97. 0. Reg. 67/93.
R. R. 0. 1990, Reg. 855.

R.R.O. 1990, Reg. 856. R.R.O. 1990, Reg. 857. R.R.O. 1990, Reg. 858.
Asbestos on Construction Projects and in Buildings and Repair Operations: Benzene: Coke Oven Emissions:
R.R.O. 1990, Reg. 835, as amended by 0. Reg. 507/92. R.R.O. 1990, Reg, 836, as amended by 0. Reg. 508/92. R.R.O. 1990, Reg. 837, as amended by 0. Reg. 509/92 and 0. Reg. 598/94. R.R.O. 1990, Reg. 838, as amended by 0. Reg. 510/92. R.R.O. 1990, Reg. 839, as amended by 0. Reg. 511/92. R.R.O. 1990, Reg, 840, as amended bv 0. Reg, 512/92,
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Ethylene Oxide: Isocyanates: Lead: Mercury: Silica: Vinyl Chloride:
R.R.O. 1990, Reg. 841, as amended by 0. Reg. 515/92. R.R.O. 1990, Reg. 842, as amended by 0. Reg. 518/92. R.R.O. 1990, Reg. 843, as amended by 0. Reg. 519/92. R.R.O. 1990, Reg. 844, as amended by 0. Reg. 520/92. R.R.O. 1990, Reg. 845, as amended by 0. Reg. 521/92. R.R.O. 1990, Reg. 846, as amended by 0. Reg. 522/92.
C. General Biological or Chemical Agents, Control of Exposure R.R.O. 1990, Reg. 833, as to: amended by 0. Reg. 513/92 and 0. Reg. 597/94. Hazardous Materials Inventories: R.R.O. 1990, Reg. 850, revoked by 0. Reg. 397/93. Workplace Hazardous Materials Information System: D. Hazardous Physical Agents X-Ray Safety: E. Regulations that Directly Affect/Impact the Act Certification Training Programs: Criteria for Unilateral Work Stoppage: Designations under Clause 16(l)(n) of the Act: R.R.O. 1990, Reg. 860, as amended by 0. Reg. 36/93. R.R.O. 1990, Reg. 861. 0. Reg. 780/94. 0. Reg. 243/95. R.R.O. 1990, Reg. 847, as amended by 0. Reg. 741/91 and 0. Reg. 901/93. R.R.O. 1990, Reg. 852, as amended by 0. Reg. 517/92. 0. Reg. 385/96 as amended by 0. Reg. 131/98.
Inventory of Agents or Combinations of Agents for the Purpose of Section 34 of the Act: Joint Health & Safety CommitteesExemption from Requirements: NOTE:
For a complete reference to the Regulations made under the Occupational Health and Safety Act please see the Annual Consolidated Index to the Regulations of Ontario.
Return to Contents
Appendix CMinistry of Labour Field Offices
Ministry of Labour Offices
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The New "Workplace Safety and Insurance Act"
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THE NEW 'WORKPLACE SAFETY AND INSURANCE by PETER L. BIRO and DANIELLE SZANDTNER
ACT
On January 1, 1998, the new Workplace Safety and Insurance Act replaced the Worker's Compensation Act. Simultaneously, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) replaced the Worker's Compensation Appeals Tribunal (WCAT) and the Workplace Safety and Insurance Board (WSDB) replaced the Worker's Compensation Board. Employers should expect the Board to review and rewrite its policy and procedural manuals significantly to allow for administration of the new Act.
New Role for the Board
The Board's new focus will be on prevention first, return to work where possible, labour market re-entry services when needed and compensation when required. The Board now has a much broader role in health and prevention. In order to promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases, the Board's functions include the following:
1. 2. 3. 4.
To promote public awareness of occupational health and safety; To educate employers, workers and other persons about occupational health and safety; To foster a commitment to occupational health and safety among employers, workers and others; To develop standards for the certification of persons who are required to be certified for the purposes of the Occupational Health and Safely Act and to approve training programs for
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certification; 5. 6. To certify persons who meet the standards; To develop standards for accreditation of employers who adopt health and safety policies and
operate successful health and safety programs; 7. 8. To accredit employers who meet the standards; To designate safe workplace associations, to designate medical clinics and training centres specializing in occupational health and safety matters and to oversee their operation and make grants or provide funds to them; 9. 10. To provide funding for occupational health and safety research; To develop standards for training about first aid and to provide funding to those offering such training; 11. To advise the Minister on matters relating to occupational health and safety that are referred to the Board or brought to its attention.
Claims
In spite of recommendations by the employer community, the definition of "accident" has remained unchanged in the new Act. "Accident" still includes a wilful and intentional act, not being the act of the worker, a chance event occasioned by a physical or natural cause and disablement arising out of and in the course of employment. The new legislation still presumes that an accident arising out of the worker's employment occurred in the course of their employment and maintains the benefit of doubt in favour of the worker,
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= \ R R 1 S T E R 5 vs I) S O L I C I T O R S
New Time Limhs for Filing a Claim
Under the previous legislation, there were no time limits for filing a claim for benefits. The new Act establishes a six-month time limit. A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational disease, after the worker learns of the disease. The Board has the discretion to extend this time limit.
New Approach to Mental Stress and Chronic Pain
A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, a worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.^There is no entitlement for mental stress that arises gradually over time due to general workplace conditions. "Traumatic" means objectively traumatic, that is, an event that would generally be recognized as traumatic. Examples of sudden and unexpected traumatic events are serious accidents or fatalities, armed robberies, hostage takings, immediate death threats, physical violence or the immediate threat of physical violence, and immediate and intense sexual or racial harassment.
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A worker is entitled to benefits under the insurance plan for chronic pain as defined in the regulations, but only La such circumstances as may be prescribed. The benefits to which the worker is entitled for chronic pain are subject to such limits and exclusions as may be prescribed. It is anticipated that the number of workers entitled to Chronic Pain benefits will be significantly reduced under the new
Act.
Improved Employer Access to Medical Information
Under the old legislation, the Board sought the worker's consent to the disclosure of medical information if the accident employer requested such information. The worker had a right to object to the disclosure. Under the new Act, when filing a claim, a worker must consent to the disclosure to his or her employer of information provided by a health professional concerning a worker's functional abilities. The disclosure is for the sole purpose of facilitating the worker's return to work. If the claimant does not cooperate, the Board shall not provide benefits under the insurance plan unless the Board decides that it is just to do so.
New Return to Work Obligations
The new Act shifts the responsibility for returning workers to work to workers and their employers. The Board no longer has a central role, rather it functions as a support to these efforts. New return to work provisions fall into two phases. In the early and safe return to work phase, the workplace parties work cooperatively at getting the worker back to appropriate employment, at little or no loss of
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earnings. If this fails, or if the worker's earnings continue to fall below pre-injury earnings, the Board will conduct a labour market re-entry assessment. This will determine whether the worker requires a labour market re-entry plan to enable a return to the labour market.
Early and Safe Return to Work Phase
The employer of an injured worker shall co-operate in the early and safe return to work of the worker by contacting the worker as soon as possible after the injury occurs and maintaining communications throughout the period of the worker's recovery and impairment, by attempting to provide suitable employment that is available and consistent with the worker's functional abilities and that, when possible, restores the worker's pre-injury earnings and by giving the Board such information as the Board may request concerning the worker's return to work. For his or her part, the worker shall cooperate by contacting his or her employer as soon as possible after the injury occurs and by maintaining communication throughout the period of the worker's recovery and impairment, by assisting the employer, as may be required or requested, to identify suitable employmestcmat is available and consistent with the worker's functional abilities and that, when possible, restores his or her pre-injury earnings and by giving the Board such information as the Board may request concerning the worker's return to work.
The Board reviews the progress of the employer and the injured worker in achieving early and
safe return to work. In most cases, the Board will not be actively involved in fee process, Its new role
GOODMAN A N D C A R R B A R R I S T E R S A N 11 S O L I C I T O R S
is to monitor progress, to provide information, to promote the sharing of practices among employers, to provide information on incentive programs and the incentives, to suggest return to work resources, to provide help in resolving difficulties and disputes if they exist regarding return to work, to levy penalties under the Act, to assess the outcome of the return to work process and to determine the entitlement to loss of earnings benefits.
Modified Reemployment Obligation
Under the new Act many features of the old re-employment model remain intact. An employer must re-employ a worker who has been unable to work as a result of an injury and who, on the date of the injury, has been employed continuously for at least one year. If the worker is medically able to perform the essential duties of the pre-injury employment, the employer must offer to re-employ the worker hi the pre-injury position, or provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on the date of the injury. If the worker is not medically able to perform the essential duties of the pre-injury employment, but is medically able to perform suitable work, the employer must offer the worker thji.first opportunity to accept suitable work that becomes available.
The employer's obligation to re-employ remains limited to the earliest of; the second anniversary of the date of injury, one year after the Board notifies the employer that the worker is medically able to perform the essential duties of the pre-injury employment and the date on which the worker turns age 65.
On the request of the worker or on the Board's own initiative, the Board will determine if the employer
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has fulfilled the re-employment obligations. If the Board determines that the employer has not fulfilled the re-employment obligations, it may levy a penalty and make payments to the worker as if the worker were entitled to loss-of-earaings benefits. Where the re-employment obligations are in conflict with a collective agreement, the re-employment obligations will prevail, but not to displace the seniority provisions of the collective agreement.
Under the new Act, modifications to the re-employment obligation are as follows; 1. If an employer terminates a worker within six months of re-employment, the employer must show that the termination was not caused by the worker's injury. 2. It is the employer's duty to accommodate the worker. However, the employer no longer needs to send the Board written details of the accommodations they are making for the worker. 3. Employers who do not fulfil their re-employment obligations will be penalized by the Board. Any re-employment penalty will be considered an amount owing to the Board at the tune the penalty is charged.
Due to the emphasis on self-reliance in the return to work model, and the assumption of workplace cooperation, when a re-employment obligation begins will become an issue only when the Board is called on to determine that the worker is able to perform the essential duties of the pre-injury employment. If the workplace parties do not require the Board's involvement, there is no need to focus on the start date of the "re-employment clock."
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Compliance
Starting July 1, 1998, both the employer and the worker have an obligation to cooperate in the return to work process. If, however, one or both workplace parties fails to cooperate, despite assistance from the Board, the Board will determine whether re-employment obligations under the Act are being met. The Board will then advise the workplace parties of their obligations to cooperate and the penalties for non-cooperation and determine whether a penalty should be levied. New penalties for employer noncooperation in return to work are enforceable as of July 1, 1998. Worker penalties continue as they are
now.
Labour Market Re-entry Phase
If the return to work activities of the workplace parties do not result in a worker's return to appropriate employment, the Board will provide the worker with a labour market re-entry assessment. The Board will conduct a labour market re-entry assessment if; it is unlikely that the worker will be reemployed by the employer due to the nature of the injury, the accident employer has been unable to arrange work that is consistent with the worker's functional abilities and that restores the worker's preinjury earnings or the accident employer is unwilling to cooperate in the worker's early and safe return to work. A labour market re-entry assessment includes determining a suitable employment or business for the worker - a category of jobs that is safe, consistent with the worker's functional abilities and reduces or eliminates loss of earnings resulting from the injury. The worker's skills, employment history, transferable skills and aptitudes are considered,
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Based on results of the assessment, the Board will determine if a worker requires a labour market re-entry plan to enable a return to the labour market. The goal of a labour" market re-entry plan is to ensure that workers have the skills, knowledge and abilities to re-entre the labour market in jobs that are safe, consistent with their functional abilities, and reduce or eliminate any loss or earnings resulting from the work-related injury. If a plan is needed, it is tailored to enhance the worker's existing skills or, if necessary, provide new skills. The Board will arrange for the plan to be implemented and will pay all related costs. A labour market re-entry plan is prepared in consultation with the worker, employer as appropriate, and treating health professional. The Board will monitor the worker's progress and will continue to pay loss of earnings benefits as long as the worker cooperates in all aspects of the assessment and plan. Non-cooperation by the worker will result in reduced or suspended benefits.
Changes to Compensation
The two main categories of compensation are no longer Future Economic Loss Awards (PEL) and Non-Economic Loss Awards (NEL). Under the new Act, they are Loss of Earnings Awards (LOE).. and Non-Economic Loss Awards (NEL).
If a worker has a work-related injury or illness on or after January 1, 1998 and loses wages as a result, he or she is now entitled to a Loss of Earnings (LOE) benefit. The amount of the LOE benefit is based on 85% of pre-injury take-home earnings, a reduction of 5%. This is only received when the worker is co-operating in health care measures and his or her early and safe return to work or all aspects
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of a labour market re-entry assessment or plan. The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating,
x
When a worker's condition has reached the point where no further recovery can be expected, then he or she has reached maximum medical recovery. If the worker. still experiences a physical or psychological impairment due to their work-related injury or disease, they will be entitled to a NonEconomic Loss Award (NEL). Under the new legislation, the NEL process allows the injured worker to select the assessor from the Board roster, but removes any employer right to participate in the selection of the health care provider conducting the initial assessment. Only the Board can request a second examination and only if the doctor's report if inco'mplete or inaccurate. If a second examination is needed, a second list of doctors will be sent to the worker and to the employer. Both parties must then agree, within a 35 day time limit, on the doctor who will conduct this examination. If this does not transpire, one will be chosen for the worker by the Board.
Reduction of Loss of Retirement Income BenefiLv K
Workers injured on the job who receive benefits under the insurance plan for loss of earnings may receive a retirement income benefit once they reach age 65. If an injured worker has received compensation for loss of earnings for 12 continuous months, the Board sets aside an amount equal to 5% of every subsequent payment and puts it in the retirement fund. This is half of the previous 10% benefit.
The worker may choose to contribute an extra 5% from their compensation loss award.
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Modified Pensions Indexing
The new Act has modified inflation indexing of pensions. For those workers who are 100% disabled and survivors of deceased injured workers, the Act allows for full indexing at the Consumer Price Index rate. This full inflation protection was the treatment for all workers under the old legislation. Under the new Act, all other workers will receive modified indexing on the "Friedland Formula" [1/2 x C.P.I.) - 1% with a cap of 4%].
New Time Limits to Appeal Board Decisions
Under the previous legislation, there were no time limits for objecting to Board decisions. The new Act has established time limitations as follows; * a 30 day time limit to appeal a Board decision about return to work or a Labour Market re-entry plan made on or after January 1, 1998; * a six month time limit to appeal any other Board decision made on or after January 1, 1998; * a 30 day time-limit to appeal any Board decision around return to work or Labour Market re-entry plans made prior to January 1, 1998 that will apply starting from January 1, 1998; * a six month time limit to appeal any other Board decision made prior to January 1, 1998 that will apply starting from January 1, 1998.
The notice of objection must be in writing and must indicate why the decision is incorrect or why it should be changed. The Board may reconsider any decision mads by it and may confirm, amend or
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revoke it. Hie Board may do so at any time if it considers it advisable to do so. The Board may also provide mediation services in such circumstances as it considers appropriate.
Appeals to the New Tribunal
The jurisdiction and process of the Appeals Tribunal under the Act is fundamentally modified by the new Act. The jurisdiction of the tribunal is restricted, the tribunal is required to follow Board policy and to render a decision within prescribed tune limits. The new appeals tribunal (WSIAT) has exclusive jurisdiction to hear and decide, (a) all appeals from final decisions of the Board with respect to entitlement to health care, return to work, labour market re-entry and entitlement to other benefits under the insurance plan; (b) all appeals from final decisions of the Board with respect to transfer of costs, an employer's classification under the insurance plan and the amounts and penalties paid by a Schedule 1 and a Schedule 2 employer.
On an appeal, the tribunal may confirm, vary or reverse the decision of the Board. The Appeals Tribunal may conduct hearings orally, electronically or in writing.
A party wishing to appeal a final decision of the Board to the tribunal shall file a notice of appeal with the Appeals Tribunal within six months after the decision or within such longer period as the tribunal may permit. The notice of appeal must be in writing and must indicate why the decision is incorrect or why it should be changed. If there is an applicable Board policy with respect to the subject-matter of an
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appeal, the tribunal must apply it when making its decision. If the tribunal, in a particular case, concludes that a Board policy of which it is notified is inconsistent the Act or doesn't apply to the case, the tribunal shall not make a decision until it refers the policy to the Board for its review. Within 60 days after a referral to it, the Board shall issue a written dkection, with reasons, to the tribunal that determines the issue raised in the tribunal's referral.
The tribunal shall decide an appeal within 120 days after the hearing of the appeal ends or within such longer period as the tribunal may permit. The Tribunal may provide mediation services in such circumstances as it considers appropriate.
Enforcement of Employer Payment Obligations on Successor Employers
Under the old Act, there was no explicit power allowing the Board to collect moneys owing from successor employers following the sale or other disposition of a business. The new Act explicitly gives the Board these powers. Thus, when an employer sells, leases, transfers or otherwise disposes of all or part of the employer's business either directly or indirectly to another person other than a trustee in bankruptcy under the Bankruptcy and Insolvency Act, a receiver, a liquidator under the Wlnding-Up Act or a person who acquires any or all of the employer's business pursuant to an arrangement under the Companies Creditors Arrangement Act, that person is liable to pay all amounts owing under this Act by the employer immediately before the disposition.
There is also, for the first time, exposure on directors and officers personally., with respect to
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offences committed under the Act by corporations when such offences were committed with the knowledge, authorization, permission or acquiescence of the officers or directors.
For more iaforanaiion about the Workplace Safety and Insurance Act, contact PETER L. BIRO, at (416) 595-2341
Employer's Guide to Completing Form 7, Report of Injury under the Workplace Safety Insurance Act
THE EMPLOYER'S REPORT OF INJURY/DISEASE INSTRUCTIONS AND REPORTING OBLIGATIONS

When should I complete this report?
This report, or a WSIB pre-approved version, must be filled out every time that you learn that a work-related injury or occupational disease has caused a worker to: obtain health care and/or be absent from their regular work require modified duties at less than regular pay require modified duties at regular pay for more than seven calendar days after the date of accident earn less than regular pay at regular work. FAILURE TO MEET REPORTING OBLIGATIONS The WSIB will levy a penalty of $250 for: late submission of this report incomplete information not reporting on a pre-approved version of this form, and failing to provide a copy of the completed Form 7 to the worker. Individuals may be liable, on conviction, to a fine of up to $26,000 or up to 6 months in jail. Corporate entities may be liable, on conviction, to fines of up to $100,000. After filling out this form, please print It, then sign it and: send a copy to the Workplace Safety & Insurance Board provide a copy to the injured worker, and keep a copy for your records. Some employers provide a photocopy of this form to their health and safety committees in order to meet information requirements under the Occupational Health & Safety Act and regulations under that Act. Before providing a copy of this form to a health and safety committee, it is suggested that any personal information be removed. For example: the worker's social Insurance number the worker's telephone number and numbers of any witnesses earnings information, and pre-existing medical conditions, etc. In all cases of work-related injury/onset of disease, you are required to: provide immediate transportation to a hospital, a doctor's office, or the worker's home, If necessary, and pay full wages and benefits for the day or shift on which the Injury occurred.
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How quickly should this report be sent to the WSIB?

The law requires you to complete this form within 3 days after you team of your reporting obligation. The WSIB requires that a completed Form 7 be received within 7 business days after you ieam of your reporting obligation. You should not delay completing this report and sending it to the WSIB in Toronto.
What is meant by "health care"?

Health care includes services provided at hospitals and health facilities and services that require the professional skills of a health care practitioner, i.e. doctor, nurse, chiropractor, physiotherapist, optometrist or dentist. You should complete this report if eye glasses, dentures and/or artificial appliances were damaged while being worn in a work-related accident.
Do I have to report injuries that require first aid only?

It is not necessary to complete this report for first-aid-only injuries handled by a health care professional or trained lay person. However, the law requires that you must keep a record of all first aid details. First aid includes but is not limited to: cleaning minor cuts, scrapes or scratches, applying bandages and/or dressings.applying a splint.
GUIDE TO COMPLETING THE EMPLOYER'S REPORT OF INJURY/DISEASE

A. WORKER IDENTIFICATION Social Insurance Number The worker's social insurance number is required for T5007 reporting purposes under the Income Tax Act. Preferred Language of Service WSIB services to clients are available in English and French. Unless you indicate that the worker prefers French services, all services provided to the worker will be in English. If the worker speaks neither English nor French, please specify the worker's spoken language. Worker Reference Number/Miner's Certificate Number You may wish to record your own identification number for this claim (e.g., the worker's payroll number) in the space provided. Mining companies, including contractors doing mining work, must also enter the worker's miner's certificate number. Date of Hire Provide the date the worker first became an employee of your firm. Owners, executives of the business and (sub)contractors Employers, owners, partners, independent operators, and executive officers of a business must have personal coverage to be considered a worker for the purposes of compensation. "Executive officer" includes anyone holding the position of Chair(man), Vice-Chair(man) of the Board of Directors, President, Vice-President, Secretary, Treasurer, or Director in a limited liability company, or General Manager or Manager designated an officer by by-law or resolution of the Directors. B. EMPLOYER IDENTIFICATION Please ensure that you provide address or worksite location, branch, plant or department where the worker is raguiarjy employed. Classification Unit In addition to your WSIB rate number, you must also record the classification unit (CU) code representing your business activity. If you have been assigned more than one CU code, please record the CU code which represents the business activity the worker was engaged in when injured. If the worker was engaged in an ancillary (supportive) activity - for example, general administration - and you cannot assign the work performed to a specific CU, please assign the CU code representing the highest proportion of your annual assessable payroll. C. TEMPORARY DISABILITY If the answer to any of the questions in Section C is not known, please provide details. D. DETAILS OF INJURY/DISEASE Date and hour reported to Employer Please fill in the date and time that the injury was first reported to an employer representative, such as first aid, immediate supervisor, time office, dispatcher, or other employer official. Provide details of any accident which caused the injury/disease. Examples: The worker slipped, fell, or tripped. . . The worker was struck b y . . . or bumped into .. . The worker twisted her ankle or knee .. . If you are not aware of an accident occurring resulting in the injury/disease, describe what the worker was doing and the effort involved when an onset of pain was first noticed or when the disease was first noticed. Examples: The worker was in an awkward position ... The worker was doing strenuous work... The work was repetitive ...the worker was not accustomed to... In cases of occupational disease, the WSIB may request more specific informal! on.
E. HEALTHCARE Do not delay sending this report if this information is not immediately available. The worker has the right to make the initial choice of doctor or other qualified practitioner.
H, CLAIM INFORMATION Previous similar injury/disease

Provide any information you have concerning prior similar disability, work-related or non-work-related, and details of any ongoing problems the worker has had related to prior injury/disease. Include prior workers' compensation claim numbers, if available. Do not delay submission of this report if details are not immediately available. You may supply the additional information at a later date, by letter or by telephone.
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F. EARNINGS INFORMATION General information

You must fill out this section in full unless the worker will require first aid only and will return to work duties with full, regular wages immediately following the day of injury/onset of disease. "Earnings" includes any payment made by an employer to a worker that can be estimated in terms of money. "Earnings" includes, but is not limited to, the worker's total regular earnings including all taxable and non-taxable benefits from employment. If the worker's rate of pay at the time of the injury/disease is not truly indicative of the worker's regular earnings, the WSIB recalculates the average earnings by using a longer period of earnings information prior to the date of injury. The recalculation does not take effect until the worker has received 12 weeks of WSIB benefits.
Other individuals, machinery, equipment or motor vehicle responsible

In Schedule 1 claims, the WSIB may transfer claim costs, or may pursue court action to recover damages, in certain circumstances, such as products liability causing the injury or onset of disease. The WSIB requires that you provide the following information in these cases: the name and address of the manufacturer or supplier of the object, material, or equipment, if it caused or contributed to the injury/disease the name and address of the individual who caused or contributed to the injury/disease including the name of their employer, and the name and address of any employer who supplied a motor vehicle, machinery or equipment on a purchase or rental basis without supplying workers to operate the motor vehicle, machinery, or equipment, if it caused or contributed to the injury or disease.
Net Claim for Exemption and Net Claim Code

The WSIB requires the "net claim for exemptions" and the "net claim code" in order to calculate the worker's benefit rate. Provide this information from the Revenue Canada TD1 taxation form in effect when the injury/disease occurred. If you do not provide an exemption status, a single status will be used.
Doubts that the injury/disease is work-related

Explain what the worker was doing if the worker, at the time of the injury/disease, was doing work other than for the purpose of the employer's business.
Benefit Plan contributions

The employer must continue contributions for employment benefits (including health care, life insurance, and pension benefits) for one year following the injury when the worker is absent from work because of the injury/disease. These conditions apply when; 1) the employer was contributing to the worker's employment benefits when the injury/disease occurred, and 2) the worker was contributing to employment benefits before the injury, and the worker will continue to make the same contributions while absent from work because of the injury/disease.
Serious and willful misconduct

Serious and willful misconduct is the deliberate disobedience of an expressed order, or the breach of a law or rule which is enforced and is well known to, and designed for the safety, of workers. A thoughtless act does not constitute serious and willful misconduct. You must provide full details of the misconduct, if you feel that serious and willful misconduct caused the injury/disease.
Once the worker is ready to return to work Multi-employer benefit plans

If a worker is a member of a multi-employer benefit plan, the plan must continue employment benefits to workers who are absent from work due to the injury/disease for one year following the injury/onset of disease and neither the employer nor the worker is obliged to continue contributions during this period. Please inform the benefit plan administrator of this obligation and dates of absence. Please contact the WSIB - by phone if possible - of the return to work date. This will minimize the possibility of over payment and assist in the administration of the worker's claim.
I. AUTHORIZED SIGNATURE
An employer or an authorized representative of the employer (for example, an accountant, bookkeeper, safety representative) must sign every report of injury/disease. A partner or an executive officer of the company (except a sole owner or independent operator) may not sign the report of their own injury/disease.
G. ADVANCES
You must indicate if you are continuing to pay the worker full or partial wages while the worker is absent from work. This is sometimes referred to as "salary advances" or "partial advances." The WSIB will reimburse Schedule 1 employers the amount of compensation that would normally be paid to the worker. Additionally, the WSIB may reimburse you if you continue to pay full wages to the worker while the worker is assuming other duties that normally pay less salary. Provide details of the alternative work arrangement resulting from the worker's injury, including the usual rate of pay at the alternative work duties. Please attach a letter if additional space is needed to provide details. -Schedule 2 employers - please indicate if paying full advances. You will receive a "Covered by Advances" notice from the WSIB.
J. WORKER'S SIGNATURE
A worker may meet his or her reporting obligations by signing the Form 7. The worker's signature on the Form 7 does not necessarily mean the worker agrees with what the employer has reported on the form. The worker may always provide further information to the WSIB about the claim. If the worker meets their reporting obligation by signing the Worker's Claim/Consent Form (1492C) please write in "Worker's signature on file" in the worker's signature space on the front of the Form 7.
Please deliver this completed report, by hand, courier, mail, or FAX, to the WSIB office in Toronto, DO NOT mail original. The mailing address and fax numbers are listed on the front of this form.
CSftftT
1APC9D Workplace Safety & V lld?S D Insurance Baud' Commission d proitaaiormeiie rt de I'assurar.ce fcorttre les acddjents du travail
Mail to:
200 Front Street VVes! Toronto ON M5V3J!
FAX: (416)344-4684 1-888-313-7373
Employer's Report of Injury/Diseas

Form7
(Pagel)
Ce formulaire est dispcnible en franca/s sur demands. Please read the instructions on pages 4 & 5
WSiB use only

Claim Number
A. Worker Identification - Please complete in full

Worker Reference Number Social Insurance Number Address City /Town Province Miner's Certificate Number Years Experience n Occupation
Occupation at Time of Injury/Awareness of Disease Date of Birth dd mmm

Sex
Date of Hire dd mmm
Worker's Preferred Language of Sen/ice (English 1 I French
Other language if worker speaks neither English/French Is the injured person a (sub) contractor, independent operator, owner, executive of the business or spouse or relative of the employer? Area Code
1 I yes 1 I
Telephone Number
B. Employer Identification
Employer Name Address Area Code Telephone Number Area Code FAX Number City /Town Description of Business Activity Classification Unit Code See Instructions Is the injured worker represented by a trade union? Firm Number Province Rate Number Postal Code
Worksite Location, Branch. Plant, Department Where Worker Employed
Do you have an early return to work, Co-operative Return to Work program or an accommodation program in your workplace?
j1 yes
nQ
C. Temporary Disability
Following the day that the injury/awareness of disease occurred, will the injured worker be absent from work because of the injury/disease? ^__^ f*"| un**"1 ^>_rp^ P""] yes j j If you answered "no" to the above, will the injured worker as a result of the injury/disease: assume other work duties because the injury/disease prevents them from performing their regular duties? earn less than their regular wages because of the injury/disease?
yes I
CJyesQr
Note: If your answer Is "no" to aJJ of these no - questions do not complete Section F, "Earnings Information".
D. Details of Injury/Disease
Date a nd Hour of njury/Awarencss of Disease Date and Hour Reported to Employer dd dd mmm mmm yyyy yyyy a.m.
p.m.
I
am
P-m.
Date a nd Hour L ast Worked dd mmm yyyy
a.m. p.m.
Normal Working Hours on Last Day Worked from to
Date a nd Hour Re turned to Wort( dd mmm yyyy
a.m. p.m.
Actual Earnings for Last Day Worked
Normal Earnings for Last Day Worked
Do you have any information that the worker could have returned to work earlier? If so. provide details.
1. What happened to cause the injury/disease? If known, describe injury, part of body involved and specify left or right side.
2. Who was the injury/disease reported to? If injury/disease was not reported immediately, provide reason for deiav.
3. Describe the worker's activities at the time of the injury/disease. Include details of equipment or materials used and the size and weights of objects being handled.
4. Where was the worker when the injury/awareness of disease occurred? If the injury/disease occurred outside of Ontario, specify province, state or country.
5. Is there anyone else who may have witnessed or who may know about the injury/onset of disease? If so, provide details below. Name(s) Address(es) and phone number(s) if available
Please rsad and complete pag-s 2
Workpl<* S
Employer's Report of Injury/Diseai

TOTST! /
\ f d y e f.)
f\f*f%Hin* Commission de U s^curil* I ^J"TtJll prolessionnelle el tie I'assursnts Worker's Name
WSIB use oniy

Sociai Insurance Number 1 Claim Number
1
1
E. Health Care
Did the worker receive health care? r~~| yes ("""I no r~~l don't know Initial or emergency health care: if known, provide the name and address of practitioner/facility. Current or continuing health care: if known, provide the name, address and telephone number of practitioner/facility, if different than above.
Rate of Pay
(before tax)
M
hourly daily
Total Weekly Pay Hours
If weekly pay hours are irregular, please state average weekly hours. Net Claim Code
Does the worker's work schedule change fro m week to week? I I 1 (yes
jno
F S
From Revenue Canada TD1 provide:
1 Net Claim for Exemption I
Enter Worker's Usual Work Days (F = full day, H = half day)
Are Benefit Plan (Health Care, Life Insurance, Pension) contributions continuing?
yes I I
1 no r~""]not I I I applicable
If "no", is the benefit plan a multi-employer benefit plan?
D yes Dno
Q| daily (""I weakly
The worker also receives the following earnings in addition to the Rate of Pay as reported above. (Check all that apply.)
| [ | | | Vacation Pay | Production Bonuses | Profit Sharing | Room and board and/or benefit from the worker's personal use of an employer's vehicle.
Will this benefit continue while the worker is absent from work due to this injury/disease?
If "no", please state value if known
Dno
Dyes Dyes Dno

j-jno
daily weekly daily
weekly daily weekly daily
[~ | Cost of living allowance, shift differential, lead hand premium [" | | Tips and Gratuities | Unemployment insurance benefits paid in a job creation or work-sharing program | Part Time [ [Casual [ j Seasonal I
D yes n yes Dn D O
no
weekly daily weekly
D
I Apprentice
From dd
yes
I 1 Student
yyyy
daily weekly
Identify Type of Employment (Check all that apply) | | Full Time [ I I Learner
a m
Other I mmm
j
If the worker worked after the first absence, please enter dates.
mmm
- -
To dd
yyyy
.
1
a.m.
p.m.
P.m.
G. Advances
" yu have advanced r *'" be advancing anything to cover period of disability, give particulars including dates covered.
If advances are to be mailed to another address, please provide.
H. Claim Information
To your knowledge has the worker had a previous similar injury/disease? I I yes j I no If yes, provide details. If the previous similar injury/disease was work-related, include prior WCB claim number if known.
Was any individual who does not work for you totally or partially responsible for the injury/disease?
yes
If yes, please explain.
It machinery, equipment or a motor vehicle was totally or partially responsible for the injury/disease, refer to the instructions on the reverse of the Employer's Copy and provide particulars. Do you have any reason to doubt that the injury/disease is work-related? Letter of explanation attached? P"~j yes [~~| no I 1 yes no If yes, please explain.
Who is responsible for arranging the worker's return to work? (Name and telephone number)
!.
It is an offence to deliberately make false statements to the WSiS. I declare that all of the information provided on pages 1 and 2 of this report is true. Official Title
Name of Person Completing this Report Signature
Area Code Telephone Number Date ( ) J, WORKER'S SIGNATURE: By signing below, I am claiming benefits under the Workplace Safety and insurance Act, 1997, for a work-related injury ar disease. I am also authorizing any health professional who treats me to provide me, my employer and the Workplace Safety and Insurance Board with information about my functional abilities on the Board's "Functional Abilities for Timelv Return to Work" form. Signature Date
0007A (02/00)
The Workplace Safety and insurance Act requires you So give a copy of this form to your workar.
Workplace Safety de la aecunte proiessionnrileCTde I'asfliiranc conire les scddenis du Iravai!
Mail to:
200 Front Street West Toronto ON M5V3J!
FAX: (4 16) 344^)684 1-838-313-7373
Employer's Report of Injury/Diseas^J J Form 7

(Page 3) WSiB
Claim Number
use only
Additional information
Last Name First Name Social Insurance No.
0007A (02/00)
The Workpiacs Safety and Insurance Act requires you to give a copy of this form to your worker.
Workplace Safetv insurance Beam' Commission deiaBeainle protesiionneileet de i'assun. comrelesacadentsdu travail
2CO r-rom Street West ToronloON M5V3J! 200. rue Front Guest Toronto ON M5V 3J1
Functional Abilities ForifiQ for 1 Timely Return to Wore

j | Initial form j j Follow-up form
The following information should be completed by the employer or the injured worker. Piease read the information on the reverse.
Health No. Claim No.
Date jf Accident mmm yyyy dd

I
Employer Telephone No,

Area Code Telephone
Worker's Last Name Full Address (No., Street, Apt.) City /Town Postal Code
I First Name
Employer's Name Full Address (No., Street, Apt.) City /Town Province Postal Code
Province Area Code

(
Telephone No.
Social insurance No.
) Date of Birth
I
Accident lnformation(T/7/s information should be completed by the employer or the injured worker.) Area of Injury Type of Job at Time of Injury (Where available, attach description of job activities)
The following information should be completed by the Health Professional: Area of Injury 1 Date ofisexamination on which the report based
Rehabilitation/Treatment Required?
i i i Is the worker capable of returning to work j jyes 1 |no immediately without restrictions? Please complete where capabilities are known or limitations recommended. Note: 'as tolerated' implies that restrictions are recommended but must be quantified in the workplace.
p i l yes
i lno
If no, please complete the next section
Capabilities
Walking: short distance only 1 Standing: less than 15 mini Sitting: less than 30 min 1 t as tolerated I I; other (eg. uneven ground)! 1 ; as tolerated 1 t as tolerated 1 j; othel 1 1 ; otherl I I 1 1
General Comments/Specific Limitations
j; less than 30 min.l I; less than 1 hour 1
1 ; otherl
Lifting floor to waist: less ttian 10 Kg.j
I; less than 25 Kg 1
j ; as tolerated!
Lifting waist to shoulder: less than 10 Kg.| Stair climbing: none! Ladder climbing: none 1 j; 2-3 steps only j t 2-3 steps only 1
|; less than 25 Kg.l I ; short flight 1
I ; as tolerated!
I ; other!
1; own pace!
1; as tolerated r"J I ; as tolerated! 1
I; 4-6 steps onlyl J; grip! 1 ; type! [
j; own pace! I ; writel 1
Limited ability to use hand to: hold objects! Limitations | | Bending or twisting of
[ Repetitive movement of
1 1 |
I Chemical exoosure to j Operating motorized equipment | Above-shoulder activity
1 Environmental exoosure to
1"""] Restrictions related to medications: (specify) |""| Below-shoulder activity
Exposure to vibration: highfrequency[ Limit physical exertion to: mildj Recommendation for Work Hours
j ; low frequency!
J 1 Complete Recovery Expected? Estimated Duration of Limitations

dd J , mmm . yyyy
1 ; moderate!
I ; as tolerated!
~~j Full-time hours
J Modified hours
(Please print)
| Graduated hours
Health Profession
~~|no
jyes
Date of Next Appointment for Review of Capabilities
Health Professional's Name
Full Address Signature WSIB Agency Billing No.
City/Town mmt Date Your own invoice No. dd mmm
Province wyy ; Area Code
Postal Coda Telephone Fee code
! _ _ _ <
dd
| Service data
)
vwv
mmm
^_____^__^^
2647A (01/98) WSiB-1 Employer -2 Worker -3 Hsaith Professional-4
What You Need to Know
___________
To receive benefits under The Workplace Safety and Insurance Act, the injured worker is required to apply for benefits within six months of the time of occupational injury or disease, At the time of filing a claim for benefits, the injured worker must aiso consent to the disclosure of functional abilities information provided by a health professional to his or her employer for the sole purpose of facilitating return to work. Failure to file a claim or provide consent for the release of the functional abilities information can result in no benefits. The injured worker is also required to provide a copy of the claim and the consent to his or her employer.
Employers, workers and health professionals who have questions about the completion of this form may call 1-800-387-0750. Worker
This form is to be completed by a treating Health Professional who will discuss the information with you. You and your employer should review the information on this form together to plan a return to work. Employer This is the information that you need about this worker's physical capabilities and limitations to plan return to work. When you provide this form to the treating health professional, ensure that you have attached the worker's signed consent to the release of functional abilities information. This signed consent will either be on your Form 7 or on the copy of the Form 6 that the worker must give you after filing directly with the board. Where available, also attach a description of the worker's job activities to assist the health professional in completing the form. If you have a form that is specific to your workplace and have the co-operation of the injured worker in providing consent for the release of information on your form, you are able to use your own form. The prescribed form that is available from the Board is a generic form developed to assist employers with general functional abilities information and consent by the injured worker. The WSIB will pay the health professional to complete the prescribed form only.
Health Professional
The worker has signed a consent for the release of the Functional Abilities information to the employer when s/he applied for benefits. The employer will provide the worker's signed consent. The employer and worker will use this information to return the injured worker to suitable and available work. Their return to work plans will reflect the physical capabilities and limitations you have noted and presume that no clinical contraindications exist for other work activities. The completion of this form is based on your examination of the injured worker and does not require a specialized Functional Abilities Evaluation. Diagnostic information must not be included. If you are able, please add more specific information on the duration of temporary precautions or maximum times or weights to be considered. If necessary, please attach an additional page to this completed form to describe physical capabilities and limitations. This does not replace clinical reporting requirements to the WSIB. Once you have completed the form, please give one copy to the: - worker - employer - WSIB
Workplace Safety and Insurance Board Head Office Simcoe Place 200 Front Street West Toronto ON M5V 3J1
WSIB Fax: (416)344-4684 1-888-313-7373 Workplace Safety and Insurance Board will pay you for this completed form when a copy Is received and you have filled in the billing sections,
The Pay Equity Commission The Pay Equity Act
91
J
PAY EQVIIY COMMISSION

THE PAY EQUITY ACT
What is pay equity?
Pay equity is equal pay for work of equal or comparable value. In Ontario, female workers receive, on average, 26% less in wages than male workers. The Pay Equity Act, R.S.O. 1990, c. P.7, as amended, was made law in Ontario to narrow the wage gap that exists between women's and men's wages. A major reason for this difference in pay is due to the fact that, historically, work mostly done by women has been undervalued and underpaid in relation to work mostly done by men. The Pay Equity Act, which became effective on January 1, 1988, is intended to redress this inequity within an employer's establishment. The law requires comparing the value of jobs usually or traditionally done by women, to the value of different jobs usually or traditionally done by men. It then requires that compensation (wages and benefits) be at least the same for jobs performed mainly by women that are equal or comparable in value to jobs performed mainly by men, even if the jobs are quite different. An employer could, for example, compare the value of the work of a secretary, a traditionally female job, to the value of the work of a shipping clerk, a traditionally male job. If the value to the organization or company is equal or comparable, the female job must be paid at least the same as the male job, which usually means raising the secretary's wages to that of the shipping clerk's.
7s "equal pay for equal work" the same as pay equity?

NO. Equal pay for equal work means that if a woman and a man are doing substantially the same work, for the same organization or company, they must receive the same wage unless the difference in pay is due to seniority or merit. Equal pay for equal work is regulated by the Employment Standards Act, R.S.O. 1990, c. E.14, as amended. According to the Employment Standards Act, you cannot pay a woman less than a man if she is doing substantially the same kind of work that he is doing in the same establishment (workplace). This applies in reverse. A man cannot receive less pay than a woman if he is doing substantially the same work. For example, a male baker and a female baker, working for the same company, must be paid the same. This requirement has existed since 1951. For more information on equal pay for equal work contact the Ministry of Labour, Employment Practices Branch. They may be reached at (416) 326-7000 or toll-free in Ontario at 1-800-531-5551.
http://www.gov.on.ca'lab/pec/acte.htm
11/26/00
Who is covered by the Pay Equity Act?

all public sector employers in Ontario all private sector employers in Ontario who employ 10 or more employees full-time and part-time public and private sector employees of employers covered by the Pay Equity Act * seasonal employees Those not covered by the Pay Equity Act include: employers in the private sector with fewer than 10 employees. However, companies that grow in size to 10 or more employees must achieve pay equity immediately and continue to maintain pay equity, even if they later reduce in size to fewer than 10 employees. students working during their vacation periods. employers and employees of the federal government of Canada or companies regulated by the federal government, such as chartered banks and broadcast stations. They are covered for pay equity under the Canadian Human Rights Act.
What are the underlying principles of the Pay Equity Act?

The Pay Equity Act is based on the following general principles: Pay equity is accomplished through a self-reliant process, with minimal government involvement. "Female job classes", or jobs performed mainly by women, are compared to "male job classes", or jobs performed mainly by men. These jobs may be quite different. The value of a job, not an individual employee's performance within a job, is the basis of the comparison. In general, pay equity comparisons are made among the job classes of an employer, not between different organizations. The only exception is the use of the proxy comparison method (see next section) by employers in the broader public sector who cannot achieve pay equity using the job-to-job or proportional value comparison methods within their organizations. The value of a job class is determined by measuring the factors of skill, effort, responsibility and working conditions. The employer and the bargaining agent, where there is one, may further define these four factors into subfactors in a way that is appropriate to the workplace. For example, the factor "effort" could be further defined and separated into "physical effort" and "mental effort". A gender-neutral job comparison system must be used. The criteria should not, intentionally or unintentionally, favour one gender over another. Where a female job class is found to be of equal or comparable value to a higher paid male job class, the female job must be provided with at least the same compensation as the male job. An employee's pay cannot be lowered in order to achieve pay equity. 1 1/26/00
93
In a female job class that is to receive a pay equity adjustment, both men and women are entitled to that adjustment.
What methods can be used to compare jobs?

The Pay Equity Act sets out three ways that jobs can be compared. Before applying these methods, the employer and bargaining agent, where there is one, must determine the value of female and male job classes. 1. The job-to-job comparison method directly compares female job classes with male job classes in the same organization to determine if they are equal or comparable in value. 2. The proportional value comparison method indirectly compares female job classes with a group of representative male job classes in the same organization (generally used where direct comparisons are not possible). 3. The proxy comparison method is ONLY used by broader public sector organizations, if they cannot achieve pay equity using job-to-job or proportional value comparisons and if they have an order from the Pay Equity Commission directing them to use the proxy method. This method allows an organization to look to another public sector organization with similar services as its "proxy". The first organization then compares its female job classes with a group of female job classes that have achieved pay equity in the proxy organization.
Who has to post a pay equity plan?

* all public sector employers in Ontario all private sector employers in Ontario with more than 100 employees as of January 1, 1988 According to the Pay Equity Act, it is optional for private sector employers with 10 to 99 employees to post a pay equity plan. If they decide not to post a pay equity plan they must post a "Notice of Requirement to Achieve and Maintain Pay Equity" in the workplace. Pay equity plans and notices must be posted in a prominent place in the workplace where they can be seen and read by all employees. Note: The actual deadlines for posting plans have now passed. These deadlines and the dates for paying the first adjustments are listed in A Matter of Fairness and 7s the Law Working for You.
Does pay equity have to be maintained?

YES. Pay equity is an ongoing process designed to ensure that employees in female job classes are not subjected to systemic gender discrimination in their compensation. Maintaining pay equity should be a regular part of every employer's compensation activity. Only compensation practices that are consistent with maintaining pay equity can be continued or introduced. Section 7 of the Pay Equity Act states: http://www.gov.on.ca/lab/pec/acte.htm 11/26/00
94
7(1) Every employer shall establish and maintain compensation practices that provide for pay equity in every establishment of the employer. 7(2) No employer or bargaining agent shall bargain for or agree to compensation practices that, if adopted, would cause a contravention of subsection (1).
What is the legislative history of the Pay Equity Act?

Pay equity was first legislated in Ontario in 1987 with the passage of the Pay Equity Act, 1987, S.O. 1987, c. 34. The Pay Equity Act has been amended a number of times and is now cited as the Pay Equity Act, R.S.O. 1990, c. P.7, as amended. Significant changes in the legislative history of the Act include the following:
June 15, 1987

Bill 154: Pay Equity Act, 1987 passed third and final reading in the Ontario Legislative Assembly and became effective on January 1, 1988. It signified the first time that pay equity had been legislated in Ontario.
June 28,1993
Bill 102: Pay Equity Amendment Act, 1993 passed third and final reading. It allowed approximately 420,000 additional working women in Ontario to achieve pay equity by adding two new methods of job comparison, proportional value and proxy.
January 29,1996
Bill 26: Savings and Restructuring Act, 1996 passed third and final reading. Schedule J of this omnibus bill repealed the proxy comparison method.
September 5,1997
Mr. Justice O'Leary of the Ontario Court of Justice, General Division, released a decision responding to an application for a declaration that Schedule J of the Savings and Restructuring Act violated the equality requirements in the Canadian Charter of Rights and Freedoms. The application was brought by the Service Employees International Union. Mr. Justice O'Leary found Schedule J did violate the equality rights provision of the Charter and declared it unconstitutional, thereby reinstating the proxy comparison method.
October 7,1997
Bill 136: Public Sector Transition Stability Act, 1997 passed third and final reading. The passage of this Bill made changes to the Pay Equity Act that affect pay equity requirements when a sale of a business (merger or amalgamation) occurs. Employers and unions are no longer bound to maintain adjustments from previous plans when developing new plans after a sale of business occurs.
How do I get further information about the Pay Equity Act?
http://www.gov.on.ca/lab/pec/acte.htm
11/26/00
rav C.UUHV
nc ray c-quny ^-
95
The Pay Equity Commission has produced many useful publications which provide farther information about the Pay Equity Act, including two brochures entitled, A Matter of Fairness and Is the Lav,- Working for You. These brochures can be obtained by contacting the Commission directly and requesting your own free copy: Pay Equity Office 400 University Ave., llth Floor Toronto, Ontario M7A 1T7 (416) 314-1896 or toll-free 1-800-387-8813 Fax (416) 3 14-8741
How do I get my own copy of the Pay Equity Act?

Copies of the Pay Equity Act can be purchased from Publications Ontario. They can be contacted at: Publications Ontario 50 Grosvenor Street Toronto, Ontario M7A 1N8 (416) 326-5300 or toll-free 1-800-668-9938
Home Pago
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Last modified on : Wednesday, December 23, 1998.

This information is provided as a public service by the Government of Ontario. Every reasonable effort has been made to ensure the currency and accuracy of the information presented at the site, but readers should verify information before acting on it.
Ontario
1998 Queen's Printer for Ontario
http://www.gov.on.ca/lab/pec/acte.htm
11/26/00
Workplace Harassment: Employee Relations Policies
10/99
Employee Relations Policies
96
Workplace Harassment
The Need
Workplace harassment has become a key issue in employment matters. All employees should understand that discriminatory conduct or harassment on a "prohibited ground" is illegal and cannot be tolerated. Frequently, harassment is subtle and employees are fearful of making allegations of harassment against managers or co-workers; however, failure to deal with such issues leads to a negative impact on overall employee relations. Every employer needs a method or process whereby employees may bring their concerns into the open without fear of retaliation and to ensure consistent, equitable treatment where harassment and/or discrimination are alleged. Employers who fail to investigate such allegations or take proper corrective action are in danger of facing intervention from government agencies or the courts. Proper and thorough investigation of harassment allegations helps to provide a measure of defence if government agencies become involved in the complaint.
Considerations
A key consideration is to ensure complaints of harassment or discrimination become known to senior management as quickly as possible so the appropriate investigation can occur in a prompt and timely manner. Above all, the investigation and resulting actions, if any, should be treated in a confidential manner and should be confined only to those who are involved. Employees who believe they are being harassed or are victims of discrimination require a sympathetic and understanding person who can help them deal with the issue. By allowing employees to lodge their concerns with a list of designated persons, employees are able to select from several mangers who have been trained in dealing with issues of harassment. Without such training, it is very easy for the individual to make a serious mistake in resolving a complaint of harassment. The training also provides some assurance the complaint will be dealt with in a serious manner.
HUMAN RESOURCES POLICYPRO Ontario Edition
E5.03 - 1
Employee Relations Policies
10/9S
Investigation and ensuing action, if any, needs to occur quickly and effectively. The concern should never be allowed to fester! Investigations should be conducted by an impartial individual preferably one who is not under the authority (direct or indirect) of either party involved in the complaint. Training managers and supervisors in the handling of workplace harassment issues is vital to the success of any policy statement.
Legislated Requirements
The Ontario Human Rights Code prohibits harassment of individuals on specified grounds of discrimination including sexual harassment. Refer to the topic Employment Principles contained in the Chapter on Employment Policies. Each province has a different set of "protected grounds". Review provincial legislation in your jurisdiction to ensure that your policy covers what is legally required. The Canada Labour Code (applicable to employers in the federal jurisdiction) provides excellent guidelines for employers who wish to publish a policy on this subject. That Code specifies a policy statement on sexual harassment must contain the following: (a) a definition of sexual harassment that is substantially the same as the definition contained in the Canada Labour Code, (b) a statement to the effect that every employee is entitled to employment free of sexual harassment; (c) a statement to the effect that the employer will make every reasonable effort to ensure that no employee is subjected to sexual harassment; (d) a statement to the effect that the employer will take such disciplinary measures as deemed appropriate against any person under the employer's direction who subjects any employee to sexual harassment;
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(e) a statement explaining how complaints of sexual harassment may be brought to the attention of the employer; (0 a statement to the effect that the employer will not disclose the name of a complainant or the circumstances related to the complaint to any person except where disclosure is necessary for the purposes of investigating the complaint or taking disciplinary measure in relation thereto; and
(g) a statement informing employees of the discriminatory practices provisions of the Canadian Human Rights Actthat pertain to rights of persons to seek redress under that Act in respect of sexual harassment.
About the Sample Statement of Policy and Procedure

The definitions illustrated in the Definitions Section are samples only and are designed to show typical types of harassment. They are not legislated definitions and may be modified to reflect each employer's views. Note that the Scope of the sample Statement extends the policy to businessrelated activities conducted off the business premises.
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POLICY .01 [Company] believes in providing and maintaining a work environment in which all employees are free from workplace harassment, sexual harassment and discrimination. Such actions are not tolerated and, where possible, are to be redressed. Retaliation or reprisals are prohibited against any employee who has complained under this Statement of Policy and Procedure, or has provided information regarding a complaint. Any retaliation or reprisals are subject to immediate corrective action, up to and including termination. Alleged retaliation or reprisals are subject to the same complaint procedures and penalties as complaints of discrimination and harassment. [Company] recognizes that individuals may find it difficult to come forward with a complaint under this Statement of Policy and Procedure because of concerns of confidentiality. Therefore, all complaints concerning workplace or sexual harassment or discrimination, as well as the names of parties involved, shall be treated as confidential. [CompanyJ's obligation to conduct an investigation into the alleged complaint may require limited disclosure. No record of the complaint will be maintained on the personnel file of the j complainant. If there is a finding of improper conduct that results in disciplinary action, it will i be reflected only on the file of the person who engaged in such conduct, in the same way I as any other disciplinary action. i
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PURPOSE This Statement of Policy and Procedure outlines the procedures to be followed regarding workplace and sexual harassment and discrimination so that employees reporting alleged incidents will know the matter will be treated confidentially and may be reported without fear i of retaliation or reprisal.
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SCOPE This Statement of Policy and Procedure applies to all employees. This Statement of Policy and Procedure applies not only during working time, but to any activities on or off of company premises which could reasonably be associated with the workplace (e.g. social events).
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RESPONSIBILITY All employees, and particularly employees in management positions, are responsible for ensuring discrimination and harassment are not tolerated and, where possible, are redressed. Employees are requested to report promptly when they become aware of, or hear of, alleged actions or complaints of discrimination or harassment. Managers are responsible for providing a work environment that is free from discrimination and harassment. This responsibility includes actively promoting a positive, harassment-free work environment and intervening when problems occur. Additionally, managers are responsible for dealing with inappropriate actions of others, that come to their attention.
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DEFINITIONS "Workplace" means any place where business or work-related activities are conducted. It includes, but is not limited to, the physical work premises (offices or plants), work-related social functions (parties, golf games, etc.), work assignments outside [Company]'s offices or plants, work-related travel, and work-related conferences or training sessions. "Harassment" means engaging in a course of vexatious comment or conduct that is known, or ought reasonably to be known, to be unwelcome. It may include unwelcome, unwanted, offensive, or objectionable conduct that may have the effect of creating an intimidating, hostile or offensive work environment; interfering with an individual's work performance; adversely affecting an individual's employment relationship; and/or denying an individual dignity and respect. Harassment may result from one incident or a series of incidents. It may be directed at specific individuals or groups. "Sexual harassment" is any unsolicited conduct, comment, or physical contact of a sexual nature that is unwelcome by the recipient. It includes, but is not limited to, any unwelcome sexual advances (oral, written or physical), requests for sexual favours, sexual and sexist jokes, racial, homophobic, sexist or ethnic slurs; written or verbal abuse or threats; unwelcome remarks, jokes, taunts, or suggestions about a person's body, a person's physical or mental disabilities, attire, or on other prohibited grounds of discrimination; unnecessary physical contact such as patting, touching, pinching or hitting; patronizing or condescending behaviour; displays of degrading, offensive or derogatory material such as graffiti or pictures; physical or sexual assault.
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REFERENCES and RELATED STATEMENTS of POLICY and PROCEDURE Ontario Human Rights Code SPP HR 2.01.ON Employment Principles SPP HR 5.01.ON Employee Relations Principles SPP HR 5.02.ON Dispute Resolution
PROCEDURE .01 (a) Step 1 Self-help Employees are encouraged to attempt to resolve their concerns by direct communication with the person(s) engaging in the unwelcome conduct. Where employees feel confident or comfortable in doing so. communicate disapproval in clear terms to the person(s) whose conduct or comments are offensive. Keep a written record of the date, time, details of the conduct, and witnesses, if any. (b) Step 2 - Management Support and Intervention Employees who are not confident or comfortable with Step 1 and who believe they are victims of discrimination or harassment, or become aware of situations where such conduct may be occurring, are encouraged to report these matters to any of the following: the employee's manager, [General Manager], or any person designated to deal with harassment complaints from time to time by [Company]. (c) Step 3 - Formal Complaint If informal attempts at resolving the issue are not appropriate, or proving to be ineffective, a formal complaint may be filed. To file a forma! complaint: (i) Provide a letter of complaint that contains a brief account of the offensive incident (i.e. when it occurred, the persons involved, names of witnesses, if any). The letter shall also include the remedy sought and be signed and dated by the person complaining; File the complaint with your manager, to the [General Manager], or to any person designated by [Company] to deal with harassment complaints;
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(Hi) Cooperate with those responsible for investigating the complaint.
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An employee who becomes aware of situations where discrimination or harassment may be occurring is requested to notify his or her manager, the [Genera! Manager] or to any person designated by [Company] to deal with harassment complaints. Formal complaints shall be investigated. The investigation process shall involve interviews of the complainant, the respondent and any witnesses named by either. Within fourteen (14) working days of the incident or notice thereof, that manager shall investigate the incident and prepare a written report of the investigation findings. The report shall be provided along with recommendations, if any, to the [General Manager] for action. All complaints shall be handled in a confidential manner. Information concerning a complaint, or action taken as a result of the investigation, will not be released to anyone who is not involved with the investigation. Disciplinary action for violations of this Statement of Policy and Procedure will take into consideration the nature and impact of the violations, and may include a verbal or written reprimand, suspension (with or without pay) or termination (with or without notice). Similarly, deliberate false accusations are of equally serious nature and will also result in disciplinary action up to and including termination without notice for just cause. Note, however, that an unproven allegation does not mean that harassment did not occur or that there was a deliberate false allegation. It simply means that there is insufficient evidentiary basis to proceed or that while the complainant may have genuinely had reason to believe that there was harassment, investigation has not borne out the complaint.
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HIRING? A HUMAN RIGHTS GUIDE
ONTARIO HUMAN RIGHTS COMMISSION
ISBN: Approved by the Commission: March 19,1997 Available in various formats: IBM compatible computer disk, audio tape, large print Also available on Internet: http://www.ohrc.on.ca Disponible en francais
HIRING? A HUMAN RIGHTS GUIDE Table of Contents: Introduction Freedom from Discrimination in Employment Advertising Application Forms Employment Interviews Driver's Licence Exceptions Information After a Conditional Offer of Employment Appendix A Relevant Provisions of the Ontario Human Rights Code If a Human Rights Complaint is Made Against You If You Have a Human Rights Complaint Appendix B Sample Application for Employment 1. INTRODUCTION The Ontario Human Rights Code (the "Code") states that it is public policy in Ontario to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of
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the Code are aimed at creating a climate of understanding and mutual respect so that each person feels a part of the community and feels able to contribute to the community, Human rights law is based on the principle that empioyment decisions should be based on the applicant's ability to do the job rather than on factors that are unrelated to job requirements, qualifications or performance. Consequently, employers are advised to ask only those questions on application forms that relate to job requirements and qualifications, and not ask questions that may contravene the Code. These guidelines and the sample application form included (Appendix B) illustrate the types of questions that are appropriate on employment application forms and at personal employment interviews. The sample application form is not legally required . Its purpose is to provide suggestions and guidance to employers in designing their own employment application forms and in conducting interviews that respect human rights laws.
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2. FREEDOM FROM DISCRIMINATION IN EMPLOYMENT Subsection 5 (1) under Part I of the Code prohibits discrimination in employment on the grounds of: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status and handicap. The right to "equal treatment with respect to employment" includes, but is not limited to the employment application and recruitment process. "Employment" is not defined in the Code but the Commission takes a broad and liberal approach to this term. It includes full-time and part-time employment, contract work, temporary staff from agencies, probationary periods and may even include volunteer work. Subsection 11 (1) of the Code also establishes that the right of a person under Part I is infringed where a requirement, qualification or factor exists that is not a prohibited ground of discrimination, but that results in the exclusion or restriction of a group of persons who are identified by a prohibited ground of discrimination, unless the requirement or factor is reasonable and genuine in the circumstances, subject to undue hardship on the employer. Subsection 23 (2) of the Code prohibits the use of an employment application form or a written or oral inquiry that directly or indirectly classifies an applicant on the basis of a prohibited ground of discrimination. Subsection 23(4) of the Code establishes that an employer cannot use an employment agency to hire people based on preferences related to race, sex, handicap or other grounds of the Code. Employment agencies cannot screen applicants based on discriminatory grounds and are not allowed to keep a record of client "preferences" of this kind. There are also important exceptions to these basic prohibitions which are applied in particular circumstances and on certain grounds: Section 14 of the Code allows employers to implement special programs designed to relieve hardship or economic disadvantage, to assist disadvantaged persons or groups to achieve equal opportunity, or to contribute to the elimination of discrimination. Section 16 of the Code provides for exceptions to be made with respect to Canadian citizenship in certain employment situations. Section 24 of the Code allows for persons to be dealt with differently within a particular employment situation because of their age, sex, marital status, etc., if the distinction being made is reasonable and genuine. For further information on these exceptions, please see "Section 7: Exceptions".
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3. ADVERTISING Job advertisements should not contain questions that ask directly or indirectly about race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, record of offences, age, marital status, family status or handicap. Some qualifications may not mention a ground of the Code directly, but may unfairly prevent or discourage people from applying for a job. Advertisements for jobs that require "Canadian experience" or that indicate a preference for childless applicants are examples of "qualifications" that may be discriminatoryj>arriers. Requirements or duties for employment should be reasonable, genuine and directly related to the performance of the job. For example, it is reasonable, genuine and job-related to require a receptionist to speak clear, intelligible English, but it is not acceptable to require "unaccented English". Or, if it is essential that the person must drive for the job, the advertisement may state that a valid driver's license (with the required class) is required.
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4. APPLICATION FORMS It is not appropriate to include on application forms any questions that relate directly or indirectly to the following prohibited grounds of discrimination: race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, record of offenses, age, marital status, family status or handicap. Employment-related medical examinations or inquiries, that are part of the applicant screening process, are also not permitted (see the Commission's Policy on Employment-Related Medical Information). RACE/COLOUR Permissible Questions None. Prohibited Questions Questions about or relating to physical characteristics such as colour of eyes, hair, skin, height, weight, or requests photographs. Questions about mother tongue, where language skills were obtained and whether one speaks English or French fluently, unless fluency in English or French is a reasonable and genuine requirement for the position. CREED Permissible Questions None. Prohibited Questions Questions about or relating to religious affiliation/membership, religious institutions attended, frequency of attendance, religious holidays, customs observed, willingness to work on a specific day which may conflict with requirements of a particular faith (e.g., Saturday or Sunday Sabbath days).
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Requests for character references that would indicate religious affiliation. CITIZENSHIP / PLACE OF ORIGIN / ETHNIC ORIGIN Permissible Questions Are you legally entitled to work in Canada? Prohibited Questions Questions about or relating to birth-place, nationality of ancestors, spouse and-other relatives, Canadian citizenship, landed immigrant status, permanent residency, naturalization, requests for proof of Canadian citizenship or Social Insurance Number (A S.I.N. may contain information about an applicant's place of origin or citizenship status. A S.I.N. may be requested following a conditional offer of employment). Questions about or relating to "Canadian" experience for a particular job. Questions about or relating to membership in organizations which are identified by a prohibited ground of discrimination, such as an Anglo-Canadian organization. Questions about the name and location of schools attended.
SEX
Permissible Questions None. Prohibited Questions Categories on application forms or inquiries such as surname or last name before marriage (maiden or birth name); Mr., Mrs., Miss, Ms; relationship with person to be notified in case of emergency or insurance beneficiary. SEXUAL ORIENTATION Permissible Questions None. Prohibited Questions Any questions regarding the applicant's sexual orientation. Categories on application forms or inquiries such as married, divorced, common-law relationship, single, separated; information about spouse and their employment (e.g., is spouse willing to transfer?); relationship with person to be notified in case of emergency or insurance beneficiary are prohibited. MARITAL STATUS Permissible Questions None. Prohibited Questions
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Categories on application forms such as married, divorced, common-Saw relationship, single, separated; last name or surname before marriage {maiden or birth name; Mr,, Mrs., Miss, Ms; information about spouse and their employment (e.g., is spouse willing to transfer?); second income; relationship with person to be notified in case of emergency or insurance beneficiary. FAMILY STATUS Permissible Questions None. Prohibited Questions Categories on application forms such as married, divorced, common-law relationship, single, separated; maiden or birth name; Mr., Mrs., Miss, Ms; children or dependants; child care arrangements; information about spouse and their employment (e.g., is spouse willing to transfer?); second income; relationship with person to be notified in case of emergency or insurance beneficiary. RECORD OF OFFENCES Permissible Questions An employer may ask whether an applicant has been convicted of a criminal offence for which a pardon has not been granted. If being bondable is a reasonable and genuine requirement of the job, an employer may ask if the applicant is eligible. Prohibited Questions Questions about or relating to whether an applicant has ever been arrested; convicted of any offence (this question invites information on pardoned offences); has ever spent time in jail; has ever been convicted under a provincial statute (e.g., Highway Traffic Act); has a criminal record, or has been convicted of an offence for which a pardon has been granted.
AGE
Permissible Questions Are you 18 years of age or older and less than 65 years of age? Prohibited Questions Questions about or relating to age, date of birth or requests for birth certificates or baptismal records, or other documents such as driver's licence which indicate age. HANDICAP / DISABILITY Permissible Questions None. Prohibited Questions Questions about or relating to health, disabilities, illnesses, mental disorders, physical or intellectual limitations, developmental handicaps or intellectual impairment, medical history, Seaming disability, injuries or Workplace Safety and Insurance claims, medication, membership in medical or patient associations (e.g., Alcoholics Anonymous).
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An employer may not ask for a listing of disabilities, limitations or health problems, An employer is prohibited from asking an applicant whether they drink or use drugs, whether they have ever received psychiatric care, and if they have ever been hospitalized for emotional problems. Questions about or relating to whether accommodation of disability-related needs is required, and as to the nature of such accommodation. Requirements that applicants undergo pre-employment medical examinations. Indication of eligibility for or possession of a valid driver's licence.
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5. EMPLOYMENT INTERVIEWS At the interview stage of the employment process, the employer may expand the scope of job-related questions if necessary to determine, for example, the applicant's qualifications or his/her ability to perform the essential duties of the job. Questions about or related to the "Exceptions" outlined below are also permitted at the interview stage. Examples of permissible interview questions follow. RACE / COLOUR / ANCESTRY / PLACE OF ORIGIN / ETHNIC ORIGIN Permissible Questions Questions about or relating to a service organization working with a particular community as to membership in the group served, if such membership can be justified as required to do the particular job. Prohibited Questions Questions about or relating to physical characteristics such as colour of eyes, hair, skin, height, weight. Questions about mother tongue, where language skills were obtained and whether one speaks English or French fluently, unless fluency in English or French is a reasonable and genuine requirement for the position. Questions about or relating to birth-place, nationality of ancestors, spouse and other relatives, Canadian citizenship, landed immigrant status, permanent residency, naturalization, requests for proof of Canadian citizenship or Social Insurance Number (A S.I.N. may contain information about an applicant's place of origin or citizenship status. A S.I.N. may be requested following a conditional offer of employment). Questions about or relating to "Canadian" experience for a particular job. Questions about or relating to membership in organizations which are identified by a prohibited ground of discrimination, such as an Anglo-Canadian organization. Questions about the name and location of schools attended. Questions which do not fall into the "Special Interest Organizations" exemptions set out below. CREED Permissible Questions
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Questions by a denominational school as to religious membership, if the job involves communicating religious values to students. Prohibited Questions All questions which do not fall into the "Special Interest Organizations" exceptions set out below. CITIZENSHIP Permissible Questions Questions about or relating to citizenship, if required by law for a particular job. Questions about or relating to citizenship or permanent resident status, where cultural, educational, trade union or athletic activities can be restricted to Canadian citizens and permanent residents. Questions about or relating to citizenship or place of residence with intention to obtain citizenship, when an organization requires that a senior executive position be held by a Canadian citizen or a person living in Canada with the intention to obtain citizenship. Prohibited Questions Questions about or relating to the applicant's citizenship that do not fall within the exceptions outlined in the Code.
SEX
Permissible Questions Questions about or relating to gender, if it is a reasonable and genuine requirement for a particular job, such as employment in a shelter for battered women. Prohibited Questions All other questions concerning the applicant's sex, including questions regarding pregnancy or child-bearing plans. SEXUAL ORIENTATION Permissible Questions None. Prohibited Questions All questions about or relating to sexual orientation. RECORD OF OFFENSES Permissible Questions Questions to determine whether the applicant has been convicted of a criminal offence for which a pardon has not been granted. Questions to determine if an applicant is bondabie, if being bondable is a reasonable and genuine qualification of the job. Questions to determine if an applicant has a record of convictions under the Highway Traffic Act, if driving is an
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essential job duty (e.g. bus driver). Prohibited Questions All other questions except those with respect to unpardoned Criminal Code convictions. HANDICAP / DISABILITY Employers are obligated to offer candidates with disabilities an accommodation of their needs if required for any part of the interview or test screening process. If the applicant's disability becomes an issue at the interview, e.g. where the applicant chooses to talk about his/her disability, an employer may make inquiries about the applicant's accommodation needs. Inquiries should be limited to the applicant's ability to perform the essential duties of the job. Questions should not be unnecessary, such as "How did you end up in a wheelchair?" or "Have you been blind all your life?". They should be asked with the aim of ascertaining the applicant's ability to perform essential duties. Any questions beyond this scope should be made with great caution and care as it may lead to a complaint on the ground of disability should the applicant not be successful. Additionally, if an employer fails to canvass possible accommodation measures where disability has become an issue at an interview, this also could potentially lead to a complaint on the ground of disability should the applicant not be successful. Any other disability issues should not be raised until a conditional offer of employment is made. These protections also apply to other accommodation needs covered by the Code, such as pregnancy and religious needs, although the requirement to accommodate a disability is based on the needs of the individual, whereas other grounds are protected on the basis of needs of the group. Permissible Questions Questions directly related to the applicant's ability to perform the essential duties of the job. Prohibited Questions All other questions concerning the applicant's disability.
AGE
Permissible Questions Questions about or relating to age if the employer serves a particular age group and/or if age requirements are reasonable and genuine to qualify for employment. Prohibited Questions All other questions about age. MARITAL STATUS Permissible Questions Questions about or relating to marital status if the employer serves a particular group identified by marital status (e.g. single woman) and/or if marita! status is a reasonable and genuine requirement for employment. Prohibited Questions
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Ail other questions as to marital status, FAMILY STATUS Permissible Questions Questions about or relating to family status if family status is a reasonable and genuine requirement for employment. Please see further Nepotism or Anti-Nepotism Policies in "Section 7: Exceptions". Prohibited Questions All other questions as to family status.
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6. DRIVER'S LICENCE A request for a driver's licence number or a copy of the licence on an application form or during an employment interview is not appropriate for two reasons: a. it may screen out applicants with disabilities without consideration of whether the individual may be accommodated, and b. it allows using a licence to determine age. If operating a vehicle is an essential job duty (e.g., truck, bus or taxi driver or chauffeur), and if individual accommodation is not possible the requirement for a valid driver's licence may be referred to in an advertisement and discussed at an interview. A request for a driver's licence number or a copy of the licence should only be made following a conditional offer of employment.
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7. EXCEPTIONS The Code sets out a number of special exceptions to the rule prohibiting discrimination in employment. The exceptions are made primarily on the basis of equity considerations, such as the need to allow programs to serve the needs of particular communities, or on the basis of other special circumstances. For assistance in determining whether an exception applies, contact the Ontario Human Rights Commission at 1-800387-9080. You may also wish to obtain a copy of the Commission's Exceptions to the Equality Flights Provisions of the Ontario Human Rights Code, as they Relate to in the Workplace, and Guidelines on Special Programs. Included above under "Permissible Questions" are examples of questions based on the exceptions which may be asked at the interview stage. For greater clarity, the exceptions are outlined in detail below: Special Programs (Code, Section 14) Employers may implement special programs designed to relieve hardship or economic disadvantage or to assist disadvantaged groups to achieve equal opportunity. Inquiries as to membership in a group experiencing hardship or disadvantage would be permissible.
Canadian Citizenship (Code, Section 16 (2) and (3)}
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in some instances, where the employment concerns participation in cultural, educational, trade union or athletic activities, Canadian citizenship or lawful admission to Canada for permanent residence may be a reasonable and genuine requirement, qualification or consideration. The Code also allows organizations to require that CEOs and other senior executives meet residence requirements (e.g. Canadian citizenship or place of residence in Canada with the intention to obtain Canadian citizenship). Special Interest Organizations (Code, Section 24 (1)(a)) A religious, philanthropic, education, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or handicap, is allowed to give preference in employment to persons similarly identified, if the qualification is a reasonable and genuine one because of the nature of the employment. Inquiries about such affiliation may be made at the employment interview stage. Special Employment (Code, Section 24 (1)(b)) In some instances, because of the nature of the employment, age, sex, record of offences or marital status may be a reasonable and genuine qualification for the particular job. In such instances, inquiries with regard to the particular qualification may be made at the employment interview stage. Private Medical/Personal Attendants (Code, Section 24 (1)(c)) A person may refuse to employ a medical or personal attendant for him/herself or a family member on a prohibited ground of discrimination. Inquiries as to a prohibited ground of discrimination would be permitted in this situation. Nepotism or Anti-Nepotism Policies (Code, Section 24)(1)(d)) An employer may grant or withhold employment or advancement in employment to a person who is a spouse, child or parent of the employer or an employee. Inquiries which would solicit information as to whether an applicant for employment is a spouse, child or parent of a current employee would be permissible. [Top] 8. INFORMATION AFTER A CONDITIONAL OFFER OF EMPLOYMENT In order to avoid a misapprehension of discrimination, it is appropriate in some circumstances to defer asking for particular information until after making an offer of employment (preferably written) conditional on a satisfactory response. This is because the information or documentation may include particulars in relation to a prohibited ground of discrimination. For example: a driver's licence will contain information on date of birth a work authorization issued by Immigration Canada will contain information regarding date of arrival in Canada a Social Insurance Number card (S.I.N.) may contain information regarding date of arrival in Canada Requests for such information may be made after making an offer of employment where it is reasonably and genuinely related to the job.
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Requests for medical examinations or health information necessary for pension, disability, superannuation, life insurance and benefit plans should also be made after a conditional offer (preferably written) of employment is made,
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APPENDIX A RELEVANT PROVISIONS OF THE ONTARIO HUMAN RIGHTS CODE DIRECT DISCRIMINATION 5 (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offenses, marital status, family status or handicap. 23 (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. (4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer. CONSTRUCTIVE DISCRIMINATION 11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, a. the requirement, qualification or factor is reasonable and bona fide in the circumstances; or b. it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. 2. The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. EXCEPTIONS 14 (1) A right under Part i is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. 16 (1) A right under Part ! to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law.
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(2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence. (3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions. 24 (1) The right under section 5 to equal treatment with respect to employment is not infringed where, (a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status or handicap employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment; (b) the discrimination in employment is for reasons of age, sex, record of offenses or marital status if the age, sex, record of offenses or marital status of the applicant is a reasonable and bona fide qualification because of the nature of the employment; (c) an individual person refuses to employ another for reasons of any prohibited ground of discrimination in section 5, where the primary duty of the employment is attending to the medical or personal needs of the person or of an ill child or an aged, infirm or ill spouse or other relative of the person; or (d) an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee. 2. The Commission, the board of inquiry or a court shall not find that a qualification under clause (1) (b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any. If a Human Rights Complaint is Made Against You 1. If the Commission receives a complaint against you, Commission staff will contact you to discuss the matter. 2. Commission staff will explain how the Code applies to the situation and how the complaint procedure works. Commission staff will work with you and the person making the complaint to try and resolve the concerns. The Commission also offers mediation services. 3. If the concerns cannot be resolved and mediation is not successful, the complaint may proceed to the investigation stage. 4. You can ask the Commission not to deal with the complaint under section 34 of the Code if: a. another Ontario law would be better suited to deal with the situation, such as the Labour Relations Act; b. you believe that the person making the complaint has no reasonable basis to support a claim of discrimination, or that the complaint is in bad faith, or that a remedy has already been obtained by the complainant somewhere else; c. the matter is outside the Commission's legal authority; d. the person making the complaint waited longer than 6 months from the last incident of discrimination to file a complaint. 5. The Commission is neutral and does not take sides in the complaint. Commission staff will assist you with questions about the complaint procedure. However, if you require legal representation or advice, please contact a lawyer. If You Have a Human Rights Complaint 1, If you have a human rights eompiaint, you may contact the genera! inquiries line at 1 -800-387-9080 or in
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2. 3. 4. 5. 6. Toronto at (416) 326-9511 from Monday to Friday during office hours. A Commission staff person will tell you if your concerns are covered by the Ontario Human Rights Code (the "Code"). Commission staff will explain how the Code applies to your situation and how the complaint procedure works. Commission staff will work with you and the other party to resolve the concerns. The Commission also offers mediation services. If you want the Commission to address your concerns, you should file a complaint within 6 months from the last incident of discrimination. This time limit is set out in section 34 of the Code. "Filing a complaint" means that you have requested the Commission's complaint form and provided all requested details. You must have signed, dated and returned the form to the Commission. When you file a complaint, Commission staff will work with you and the person/company you have filed against, to try and resolve the complaint through mediation. The Commission may consider not to deal with a complaint under section 34 if:
a. another Ontario law would be better suited to deal with the situation, such as the Labour Relations Act; b. you have no reasonable basis to support a claim of discrimination, or that you have made the complaint in bad faith, or that you have already obtained a remedy somewhere else; c. the matter is outside the Commission's legal authority; d. you have waited longer than 6 months from the last incident of discrimination to file a complaint. 7. The Commission is neutral and does not take sides in the complaint. Commission staff will assist you with questions about the complaint procedure. However, if you require legal advice, please contact a lawyer.
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APPENDIX "B" SAMPLE APPLICATION FOR EMPLOYMENT Position being applied for Date available to begin work
PERSONAL DATA Last name Address City Province Given name(s) Apt. No. Home Telephone Number_ Postal Code Telephone Number (Business / Home)
Are you legally eligible to work in Canada? D Yes D No Are you 18 years or more and less than 65 years of age? D Yes D No Are you willing to relocate in Ontario? D Yes D No Preferred Location To determine your qualification for employment, please provide below and on the reverse, information related to your academic and other achievements including volunteer work, as well as employment history. Additional information may be attached on a separate sheet.
EDUCATION
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EMPLOYMENT
SECONDARY SCHOOLD BUSINESS OR TRADE SCHOOLG Highest grade or level completed Name of program Length of program
Diploma, certificate or license awarded? YesD NoD Honoured Type:
COMMUNITY COLLEGE D UNIVERSITY D Major subject Name of Program Length of Program
Degree, diploma or certificate awarded? Type: D Yes D No D Honours Other courses, workshops, seminars Licenses, Certificates, Degrees
WORK RELATED SKILLS Describe any of your work related skills, experience, or training that relate to the position being applied for. EMPLOYMENT Name of present/last employer Job title
Period of employment (includes leaves of absence related to maternity /parental leave, Workers' Compensation claims, handicap/disability, or human rights complaints) From Type of Business Reason for leaving (do not include leaves of absence related to maternity / parental leave, Workers' Compensation claims, handicap/disability, or human rights complaints) Functions/Responsibilities To Salary
Name of previous employer
Job title
Period of employment (includes leaves of absence related to maternity / parental leave, Workplace Safety & Insurance claims, disability, or human rights complaints) From To . Salary
Type of Business Reason for leaving (do not include reasons related to maternity / parental leave, Workplace Safety & Insurance claims, disability, or human rights complaints)
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Functions/Responsibilities For employment references we may approach: Your present/last employer? D Yes D No Your former employer(s)? D Yes D No List references if different than above on a separate sheet.
PERSONAL INTERESTS AND ACTIVITIES (civic, athletic etc.)
I hereby declare that the foregoing information is true and complete to my knowledge. I understand that a false statement may disqualify me from employment, or cause my dismissal. Have you attached an additional sheet?
D Yes D No
Signature Date
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If You Receive a Human Rights Complaint A Respondent's Guide prepared by the Ontario Human Rights Commission
OHRC - If You Receive a Human Rights Complaint: A Respondent's Guide
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ONTARIO HUMAN RIGHTS COMMISSION
IF YOU RECEIVE A HUMAN RIGHTS COMPLAINT: A RESPONDENT'S GUIDE

ISBN 0-7778-6897-0 Approved by the Commission: May 14, 1997
Available in various formats: IBM compatible computer disk, audio tape, large print Also available on Internet: http://www.ohrc.on.ca Disponible en francais PLEASE NOTE This guide reflects the Commission's interpretation of the Ontario Human Rights Code provisions and should be read in conjunction with the specific provisions of the Code. Any questions should be directed to the staff of the Ontario Human Rights Commission INTRODUCTION Under the Human Rights Code (the "Code"), it is public policy in Ontario to uphold the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The Code is aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and feels able to contribute to the community. This brochure has been prepared to assist anyone against whom a human rights complaint has been filed. It provides general information about the Code and the Commission, and explains what happens after a complaint is filed. The Commission also has a guideline for complainants (\! You Have a Human Rights Complaint: A Complainant's Guide) and a publication explaining the mediation process (A Guide to Mediation Services). These can be obtained from the Commission or from Publications Ontario. PARTIES TO A COMPLAINT The person who files a complaint and who says that discrimination occurred is called a "complainant." The person said to be responsible for the discrimination is the "respondent." A "respondent" can be an individual, corporation or organisation. There can be more than one respondent in a human rights complaint. WHAT IS THE ONTARIO HUMAN RIGHTS CODE? The Code is the province's anti-discrimination law. It prohibits discrimination in employment, services, goods and facilities, accommodation (that is, housing), contracts, and membership in trade unions, vocational or occupational associations. The purpose of the Code is also to provide a remedy by putting the complainant in the position that she or he would have been in had the discrimination not taken place. The Code is meant to be preventive and corrective, not punitive. Any person can file a complaint if that person believes that her or his human rights have been violated. However, the Commission is limited to incidents of discrimination or harassment based on specific grounds, such as, sex, age, etc. THE ONTARIO HUMAN RIGHTS COMMISSION The Commission is the government agency that is responsible for administering and enforcing the Code. It operates at arm's length from the government, which means that it is completely independent from political interference in the handling of complaints. The Commission fulfils its role by providing mediation, investigation and conciliation services. It also consults with employers, unions and other organizations and agencies, and carries out public education and training about human rights and the Code. The Commission does no? represent the person filing the complaint (the "complainant") or the person against whom the complaint is made (the "respondent"). The Commission only represents the public interest. SERVICE TO PERSONS WITH SPECIAL NEEDS
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The Commission will accommodate the needs of persons with disabilities. For example, the Commission can arrange io provide interpreters for persons who are deaf or who have hearing impediments; similarly, meeting rooms that are accessible to persons who rely on wheelchairs will be available. For further details on the Commission's obligations to persons with disabilities, piease consult the Commission's Guidelines on Assessing Accommodation Requirements for Persons with Disabilities. The Commission's services are offered in English and in French. However, if a person wishes to communicate in another language, an interpreter may be used. The Commission allows for family members, friends and community groups to act as interpreters. For example, initial contact with the Commission may be through a friend or family member. There may be circumstances where a professional interpreter is necessary. The Commission has a resource list of community groups and cultural organisations throughout Ontario that may assist in finding an interpreter. WHAT IF YOU WANT YOUR LAWYER INVOLVED? No problem. Lawyers or personal representatives can attend mediation meetings or other meetings. DISCRIMINATION Under the Code, discrimination means unfair treatment based on grounds of: race sex colour handicap or perceived handicap ancestry sexual orientation place of origin (where one was born) age ethnic origin marital status citizenship family status creed (religion) record of offence (in employment only) receipt of public assistance (in housing/accommodation only) The Code states that every person has a right to freedom from discrimination in the areas of: > services, goods and facilities (including shops, restaurants, hospitals, schools, insurance) > the occupancy of accommodation (for example: housing, whether rented or owned) > contracts (oral or written agreements) > employment (including advertisements, application forms and job interviews, promotions) > membership in trade or vocational associations and unions. The Code also prohibits sexual solicitations or advances made by a person who can grant or deny a benefit (such as a promotion, a higher grade in school) or reprisals because someone resisted or refused the solicitation or advance. It is against the law to retaliate against or threaten a complainant, a person or who has tried to exercise his or her rights under the Code, or a person who has participated in a Commission investigation.
HARASSMENT
Harassment is a form of discrimination, it includes unwelcome behaviour or comments that put down, insult or offend another person because of sex, creed, race, ancestry, age, sexual orientation, place of origin, ethnic origin, etc. The test of whether harassment has taksn place is when the person knows or ought to know thai the behaviour or comments are unwelcome. The complaint should name as respondents io a harassment complaint She individuals) who are said to be responsible for the harassing behaviour. Harassment complaints may also name an organisation, company or employer, or other person that
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is responsible, LIABILITY Liability means the legal responsibility of employers, employee associations, landlords, and service providers for preventing harassment and discrimination. This includes a responsibility to prevent discriminatory behaviour that could lead to a poisoned environment. Although employers and businesses are generally not liable for harassment in the areas of employment and accommodation if they are unaware or could not reasonably have known that harassment has taken place, they are responsible for harassment by supervisors, managers and other employees and even, in some cases, by non-employees such as volunteers who are present in the workplace, if they knew or should have known about the alleged harassment and failed to take action to deal with the matter. As well, the actions of persons who are directing minds of the organisation are deemed to be the responsibility of the organisation (see below). Management should take immediate action once a matter of this kind is raised: this means that appropriate internal procedures should be used to investigate the matter, and to ensure the safety and security of staff or other persons. Disciplinary action and preventive steps will be appropriate outcomes in cases where harassment was shown to have taken place. As well, management may wish to introduce and use in-house anti-harassment policies and conduct educational sessions for staff. Depending on the fact situation, disciplinary action may range from a verbal warning or a letter of reprimand, to termination of employment. An employer may also be liable for incidents of harassment and/or discrimination that occur outside of normal business hours or off business premises, but are linked to the workplace and/or employment. For example, office parties or client development activities may fall into this category. Some additional issues: If the company has been sold by an asset sale, the new owner will not normally be liable for past acts of harassment or discrimination. In a share sale, however, liability will normally extend to the new owner unless otherwise stated in the sale agreement. In complaints involving sole proprietorships, the individual(s) alleged to have committed the discriminatory acts should be named. The sole proprietorship should also be named. A complaint against a branch or subsidiary of a parent company located outside of Ontario should name the parent company, as well as the Ontario subsidiary, where appropriate. Under section 23 of the Code, an employment agency can be cited in a complaint whether or not its client (the employer to whom it refers job seekers) is covered by the Code. It is sufficient that the agency does business with the employer. In a workplace governed by a collective agreement, a union or employee association may share some degree of responsibility for acts of discrimination. Separate complaints may be filed against the employer and the union or association when this is supported by the facts.
"Directing Mind" Some employees are key to the business: these employees are considered to be part of the "directing mind" of the employer. If such an employee violates the Code while he or she is carrying out his or her employment duties, the act of the employee "becomes" the act of the corporation. Examples include: employees with supervisory authority; persons holding themselves out as representatives of the organisation; employees who perform management duties; persons who are not formally identified as supervisors may nevertheless be directing minds" if they have significant responsibilities or if they are in a position to make decisions on behalf of the corporation that affect the complainant.
Section 45 of the Code provides that an employer is not liable for harassment by officers, officials, employees, or agents. However, liability is restored if the alleged harasser is the "directing mind" or part of the "directing mind" of the business. Liability on the part of an organisation for discrimination and/or harassment of its employees by non-employees, such as customers, will depend on the facts of a particular situation, including the employer's knowledge of and control over the situation, and what corrective measures might be available. WHAT HAPPENS WHEN A COMPLAINT !S FILED WITH THE COMMISSION Overview f the procedures setting out the steps is at She end of this document. Each of these steps will c-e discussed in 'ho
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1. The Complaint A complaint is a legal document. It is a written statement by a complainant who states that he or she has been discriminated against because of sex, race, age, etc. The ground(s) cited must be related to one of the social areas covered by the Code, such as employment, housing, services, contracts or membership in unions. It will determine the focus of the Commission's investigation and the issues upon which the Commission will make a determination of whether or not a matter should be sent to the Board of Inquiry. The complaint must be in a form approved by the Commission. The complaint should only name as respondents those persons who are alleged to have infringed the rights of the complainant. In law, "persons" means not only individuals and companies, but also employment agencies, unincorporated associations, trade or occupational associations, partnerships and municipalities. If a respondent organisation is not a "person" under the Code, executives and/or officers may be named personally. Respondents should ensure that the proper legal name of the company or entity is used on the complaint form. If there is an error, the Commission should be advised in the response prepared by the respondent. 2. Commission-Initiated Complaint In some circumstances, the Commission may decide to initiate a complaint itself. Section 32 (2) of the Code states that: (2) The Commission may initiate a complaint by itself or at the request of any person. The Commission will examine the seriousness and extent of the discrimination, as well as fairness to the parties, in making a decision under this section. The Commission may decide to initiate its own complaint if information gathered during an investigation reveals a pattern of discrimination beyond the original complaint. As well, in some circumstances, the parties to a complaint may agree to settle, or the complainant may even withdraw the complaint, but if the Commission believes that there are unresolved human rights issues that require further investigation: a complaint may be initiated in the public interest in these circumstances. 3. Service of the Complaint The Commission arranges for a copy of the complaint to be provided to each party. This process is called "service" and it means that there is an official record of receipt. All parties named in the complaint must be served with the complaint. In employment cases, a complaint will be forwarded to personal respondents at a company address. The Commission usually serves a complaint upon both parties in person or by Priority Post/Courier within 3 days of the date of receipt of the signed complaint. In some cases, it may be served by ordinary mail or through any other appropriate means. 4. Response Respondents are requested to provide a response within 21 calendar days. A response should reply to the allegations set out in the complaint, and may include documents that are relevant to the complaint and whether you are prepared to participate in the Commission's mediation services. The respondent's position on settlement may also be included. The response will be shared with the complainant, with the exception of information about third parties such as witnesses. The request for a written response is not a substitute for the interview with the respondent, but it does provide a source of information to assist Officers in preparing for both mediation and investigation. It also provides respondents with an early opportunity to tell their side of the story. 5. Mediation The Ontario Human Rights Commission offers mediation services as a fast, effective way to resolve disputes in the ear'y stages of the human rights process. Without courtroom battles. Without cost. Without pressure. Without delays. Control over the process, speed and eonfidentiaiityare the major benefits o? mediation. It is a voluntary alternative to lengthy investigation or even litigation.
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Mediation is a practical way to help both sides to a ccmpiaint check {heir facts and assumptions, exchange perceptions and ideas, and work towards mutually agreeable settlements. It allows each party to a complaint to understand the other persons' position and it allows each person to be involved directly in the process. It is important to understand that mediation is not a fact-finding process. Nor is the mediator going to make any kind of "decision". What mediation does do is to offer a structured and controlled environment that is likely to lead to the fair settlement of the complaint.
If the matter may not appear to be appropriate for mediation, it will be referred directly for investigation, for example, if the parties refuse to consider mediation. If mediation leads to a settlement, the Mediation Officer prepares Minutes of Settlement and other documents that may be required such as releases, letters of assurance etc., for signature at the meeting. Both parlies must agree and sign the settlement. A resolution is immediately confirmed by letter once the Minutes of Settlement are signed and other terms of settlement are met. This will be approved by Commission staff within 48 hours of the settlement, unless the terms of settlement include a further element that post-dates the date of signing. In this case, the Commissioners approve the settlement. Further information on the Mediation process is available in the Commission's brochure A Guide to Mediation Services. 6. Investigation If mediation is not successful or if it does not take place, the complaint will be transferred to investigation. It should be noted that an Officer who was involved in the mediation process in any way cannot be involved in the investigation of the complaint. Transfer of a file to Investigation should occur within 10 days following the outcome of the mediation process or following receipt of the respondent's response to the complaint in instances where there was no mediation. Section 33 of the Code requires the Commission to investigate complaints by: - interviewing parties, witnesses and experts, - entering into places of business, - reviewing and copying documents and evaluating of information gathered by the Commission. The Commission may use a variety of investigative procedures, depending on the type of case and the complexity of the issue involved in the complaint. The purpose of investigating a complaint is to try to get as clear a picture as possible of what happened. The Investigation Officer conducts an impartial investigation and will request evidence from both sides to ensure that their interpretation of the events is accurate. Cooperation with the investigation process will ensure that the Commission has reasonable access to premises and documents for the purpose of investigating the complaint. The Commission must decide whether to send a matter to the Board of Inquiry based on the evidence in the file. If the evidence is not available, this will obviously limit the information upon which the Commission will make a decision. The Investigation Officer is also entitled to ask for warrants to enter a place of business and review any documents that will help with the investigation where the legal standards for obtaining a warrant are met. Both sides may consult with a lawyer or other representative at any stage of the complaint process. However, the Commission will not provide lawyers or pay for any party's legal costs other than its own. The Commission represents the public interest and cannot provide either side with legal advice. Parties to a complaint will receive written updates of the status of cases every three months. 7. Conciliation Conciliation is the process of discussing settlement with parties after the investigation has been completed and the parties have been given a disclosure of the findings from the Investigation Officer. Conciliation, if appropriate, must be conducted within 30 days from the completion of the investigation. Conciliation may also occur at any time after a complaint has been filed with the Commission, if the parties initiate discussions. Please note that conciliation will no! take place if the evidence does not support the allegations and when mediation has taken place. Should settlement not result from conciliation, the Investigation Officer will proceed to prepare the case analysis. If the complainant during conciliation refuses a reasonable offer of settlement, the Commission may decide not to send the matter to a Board of Inquiry. For this reason, information or documentation about conciliation may be referred to in the case analysis
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8. investigation Report If conciliation is not successful, a report of the investigation is prepared and disclosed to both sides, who are then invited to submit a response. The investigation report contains an analysis of the evidence and a recommendation by the Investigation Officer. 9. Decisions The Commissioners make the decision to send or not to send complaints to the Board of Inquiry. They review all the information about the complaint and can:
approve a settlement;
send the complaint to the Board of Inquiry because the evidence supports the complainant's position; not send the matter to the Board of Inquiry, or dispose of the matter under section 34 of the Code.
A copy of the Commissioners' decision in writing is forwarded to both the respondent and the complainant. 10. Section 34 Section 34 gives the Commission the discretion to not deal with certain complaints. The respondent can request that the Commission consider not dealing with the complaint if; there is another law in Ontario which would better deal with the matter, such as the Labour Relations Act or the Landlord and Tenant Act. This procedure minimises duplication of proceedings. However, each case is assessed individually on its merits to determine whether the other law addresses the human rights issues; the complaint is trivial, frivolous, vexatious or made in bad faith; the matter is outside the Commission's authority or jurisdiction; for example, the complaint is against a chartered bank or a federal government office, or the complainant waited more than 6 months after the last incident on which the complaint is based to sign a complaint. The Commission can deal with a complaint filed beyond the 6-month limit if'A is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person as a result of the delay. The respondent is responsible for providing evidence of prejudice that will result if a complaint has been signed beyond the 6-month period. Each case is assessed individually on its merits to determine whether the other law addresses the human rights issues. A section 34 decision can be requested at any time before the decision by the Commission to refer or not refer the complaint to the Board of Inquiry. However, in the interest of fairness, these issues should be identified as early as possible in the process, if the written response to the complaint contains a s. 34 request, adequate details to justify the request should be supplied. Further information can be obtained from the Commission by requesting a copy of the Commission's Section 34 Guidelines. 11. Section 36 If a complaint is not settled, the Commission has to decide whether or not to send the matter to a Board of Inquiry. The decision is based on two factors: first, if it appears that it is appropriate and second, if the evidence warrants the matter to be sent to a Board of Inquiry (Section 36 of the Code). If the procedure is not appropriate or if the evidence does not warrant sending the matter to a Board of Inquiry, the parties will be advised of this decision. The complainant has the right to request reconsideration. 12. Reconsideration The complainant can ask the Commissioners to reconsider their decision through an application for reconsideration within 15 days of the date that appears on the decision letter. This application must include material reasons such as new facts that explain why the complainant disagrees with the original decision. The Commission will advise the respondent of the complainant's request for reconsideration and forward a copy of a report discussing the application. The report will contain a recommendation as to whether or not the Commissioners should reverse their original decision. The respondent will have the opportunity to respond to the report in writing. Only the complainant can ask for reconsideration. The decision as to whether or not to reverse the original decision rests with the Commissioners and thai decision is final.
Tha Board of inquiry

The Board of inquiry is the body that hears evidence and makes the decision as to whether or not discrimination occurred.
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The Board oi Inquiry is independent from the Commission. Usually, it consists of one person who listens to the evidence to decide whether or not there is enough evidence to support the complaint. The hearing is public. The Commission, the respondent and the complainant are each separate parties before the Board of Inquiry. The Commission is responsible for presenting evidence about the complaint to the Board, although the complainant has the right to make separate submissions. The respondent and complainant may each retain their own legal counsel. The Commission does not represent the complainant or respondent at the Board of Inquiry. Both the respondent and the complainant, as well as any witnesses, may be examined under oath. Burden of Proof Under the Code, the responsibility for proving an allegation of discrimination rests with the complainant. After a complaint is referred to the Board of Inquiry, the Commission has to show the Board that, on a "balance of probabilities," the Code was violated. "Balance of probabilities" means that there is sufficient evidence to support the allegations that the discriminatory behaviour took place. The decision-maker must find that it was more likely than not that the allegations are true in order for the complaint to succeed. In many cases, the credibility of the parties becomes an issue and the Board must assess the credibility of each party. "Similar fact evidence," which could include testimony from others, who may have been treated similarly to the complainant, may be introduced to show that a pattern of behaviour might have occurred. Board Decisions If the Board of Inquiry finds that discrimination took place, it makes an order. The order is legally binding. The Board can order the respondent to: . . Cease and desist from any actions found to be discriminatory; pay for any losses that the complainant has suffered, such as loss of earnings or job opportunities; reinstate the complainant in a job or other position; pay the complainant an amount for loss of dignity and emotional suffering as a result of the violation; standardise workplace/human resources practices (hiring, firing, etc.) so that they are applied consistently and are appropriately documented; provide a letter of assurance to the Commission of compliance with the Code; public interest remedies, such as making an order for the respondent to change its policies, implementing training initiatives, establishing internal human rights complaint resolution procedures, introducing anti-harassment policies, or issuing a written apology to the complainant.
The Board of Inquiry decision can be appealed by any party to the courts. HOW TO PREVENT A HUMAN RIGHTS COMPLAINT The best defence against human rights complaints is to be fully informed and aware of the responsibilities and protections included in the Ontario Human Rights Code. By being proactive, organisations can minimise exposure to a complaint. Employers, landlords, service providers, professional associations and unions have a responsibility to make sure that the environment is free from discrimination and harassment. In this regard, organisations may wish to consider: offering or conducting public education programmes (the Commission can assist by providing relevant publications and by conducting public education sessions in certain cases); taking a proactive stance through anti-discrimination policies, including the dissemination and enforcement of complaint procedures for persons who experience discrimination; applying workplace practices (hiring, firing, etc.) consistently and in a well-documented manner; calling the Ontario Human Rights Commission if there are any questions or concerns . Finally, to assist in developing internal or in-house policies on any or all of the protected grounds under the Code, the Commission has published a brochure entitled Developing Procedures to Resolve Human Flights Complaints Within Your Organisation. This publication provides practical step-by-step guidelines to assist organisations who develop internal anti-harassment and anti-discrimination policies.
FOR FURTHER INFORMATION For more information about the Ontario Human High's Commission or this policy statement, please cai! 1-800-387-9030 (toll
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if a Human Rights Complaint is Made Against You

1. 2. If the Commission receives a complaint against you, Commission staff will contact you to discuss the matter. Commission staff will explain how the Code applies to the situation and how the complaint procedure works. Commission staff will work with you and the person making the complaint to try and resolve the concerns. The Commission also offers mediation services. If the concerns cannot be resolved and mediation is not successful, the complaint may proceed to the investigation stage. You can ask the Commission not to deal with the complaint under section 34 of the Code if: another Ontario law would be better suited to deal with the situation, such as the Labour Relations Act; you believe that the person making the complaint has no reasonable basis to support a claim of discrimination, or that the complaint is in bad faith, or that a remedy has already been obtained by the complainant somewhere else; the matter is outside the Commission's legal authority; the person making the complaint waited longer than 6 months from the last incident of discrimination to file a complaint. The Commission is neutral and does not take sides in the complaint. Commission staff will assist you with questions about the complaint procedure. However, if you require legal representation or advice, please contact a lawyer.
3. 4. a. b. c. d.
If You Have a Human Rights Complaint 1. If you have a human rights complaint, you may contact the general inquiries line at 1-800-387-9080 or in Toronto at (416) 326-9511 from Monday to Friday during office hours. A Commission staff person will tell you if your concerns are covered by the Ontario Human Rights Code (the "Code"). Commission staff will explain how the Code applies to your situation and how the complaint procedure works. Commission staff will work with you and the other party to resolve the concerns. The Commission also offers mediation services. If you want the Commission to address your concerns, you should file a complaint within 6 months from the last incident of discrimination. This time limit is set out in section 34 of the Code. "Filing a complaint" means that you have completed the Commission's complaint form and provided all requested details. You must have signed, dated and returned the form to the Commission. When you file a complaint, Commission staff will work with you and the person/company you have filed against, to try and resolve the complaint through mediation. The Commission may consider not to deal with a complaint under section 34 if: another Ontario law would be better suited to deal with the situation, such as the Labour Relations Act; you have no reasonable basis to support a claim of discrimination, or that you have made the complaint in bad faith, or that you have already obtained a remedy somewhere else; the matter is outside the Commission's legal authority; you have waited longer than 6 months from the last incident of discrimination to file a complaint. The Commission is neutral and does not take sides in the complaint. Commission staff will assist you with questions about the complaint procedure. However, if you require legal advice, please contact a lawyer.
2.
3. 4. 56. a. b. c. d.
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Human Rights Code, R.S.O. 1990, Chap. H.19
HUMAN RIGHTS CODE R.S.O. 1990, Chap. H.I9

Menu of Regulations 1993, c. 27, Sch.; deemed in force December 31, 1991 1993, c. 35, s. 56; proclaimed in force September 1, 1994 1994, c. 10, s. 22; proclaimed in force November 30, 1994 1994, c. 27, s. 65(1) to (25); s. 65(25) in force December 9, 1994; s. 65(1) to (6) and (8) to (24) proclaimed in force April 17, 1995; s. 65(7) to come into force on proclamation 1995, c. 4, s. 3; in force December 14, 1995 1997, c. 16, s. 8; in force January 1, 1998 1997, c. 24, s. 212; proclaimed in force June 17, 1998 1999, c. 6, s. 28; in force March 1, 2000 Administered by the Ministry of Citizenship, Culture and Recreation
History and Gases (General) |
PARTI FREEDOM FROM DISCRIMINATION -- ss. 1 to 9

Preamble WHEREAS recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world and is in accord with the Universal Declaration of Human Rights as proclaimed as by the United Nations. AND WHEREAS it is public policy in Ontario to recognize the dignity and worth of every person and to provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community and able to contribute fully to the development and well-being of the community and the Province; AND WHEREAS these principles have been confirmed in Ontario by a number of enactments of the Legislation and it is desirable to revise and extend the protection of the human rights in Ontario; Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
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Services s. 1 History 1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or handicap. 1981, c. 53, s. 1; 1986, c. 64, s. 18(1); 1999, c. 6, s. 28(1). Accommodation s. 2(1)
2. (1) Every person has a right to equal treatment with respect to the occupancy of accommodation, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status, handicap or the receipt of public assistance. 1981, c. 53, s. 2(1); 1986, c. 64, s. 18(2); 1999, c. 6, s. 28(2). Harassment in accommodation - s. 2(2) (2) Every person who occupies accommodation has a right to freedom from harassment by the landlord or agent of the landlord or by an occupant of the same building because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, marital status, same-sex partnership status, family status, handicap or the receipt of public assistance. 1981, c. 53, s. 2(2); 1999, c. 6, s. 28(3). Contracts s. 3
3. Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or handicap. 1981, c. 53, s. 3; 1986, c. 64, s. 18(3); 1999, c. 6, s. 28(4). Accommodation of person under eighteen ~ s, 4(1)
4. (1) Every sixteen or seventeen year old person who has withdrawn from parental control has a right to equal treatment with respect to occupancy of and contracting for accommodation without discrimination because the person is less than eighteen years old. Idem -- s. 4(2) (2) A contract for accommodation entered into by a sixteen or seventeen year old person who has withdrawn from parental control is enforceable against that person as if the person were eighteen years old. 1986, c. 64, s. 18(4). Employment s. 5(1) ,.' :- ^r^-î'^Gasiss-^^:-^:'^
*: ^History 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, same-sex partnership status, family status or handicap. 1981, c. 53, s. 4(1); 1986, c. 64, s. 18(5); 1999, c. 6, s. 28(5). Harassment in employment s. 5(2) (2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, same-sex partnership status, family status or handicap. 1981, c. 53, s. 4(2); 1999, c. 6, s. 28(6). Vocational associations -- s. 6
6. Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, same-sex partnership status, family status or handicap. 1981, c. 53, s. 5; 1986, c. 64, s. 18(6); 1999, c. 6, s, 28(7), Harassment because of sex in accommodation s, 7(1)
7, (1) Every person who occupies accommodation has a right to freedom from harassment because of sex by the landlord or agent of the landlord or by an occupant of the same building. Harassment because of sex in workplaces s. 7(2) (2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee. Sexual solicitation by a person in position to confer benefit, etc s. 7(3) (3) Every person has a right to be free from, (a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or (b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
1981, c. 53, s. 6.
Reprisals s. 8 8. Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing. 1981, c. 53, s. 7. Infringement prohibited -- s. 9 9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part, 1981, c. 53, s. 8.
PART II INTERPRETATION AND APPLICATION - ss. 10 to 26

Definitions s. 10(1) :-"'? Cases*- - ' - . - ; I
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10. (1) In Part I and in this Part, "age" means an age that is eighteen years or more, except in subsection 5(1) where "age" means an age that is eighteen years or more and less than sixty-five years; "because of handicap" means for the reason that the person has or has had, or is believed to have or have had, (a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device, (b) a condition of mental retardation or impairment, (c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language, (d) a mental disorder, or (e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; "equal" means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination; "family status" means the status of being in a parent and child relationship; "group insurance" means insurance whereby the lives or well-being or the lives and well-being of a number of persons are insured severally under a single contract between an insurer and an association or an employer or other person; "harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome; "marital status" means the status of being married, single, widowed, divorced or separated and includes the status of living with a person of the opposite sex in a conjugal relationship outside marriage; "record of offences" means a conviction for, (a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or (b) an offence in respect of any provincial enactment;
"same-sex partner" means the person with whom a person of the same sex is living in a conjugal relationship outside marriage; "same-sex partnership status" means the status of living with a person of the same sex in a conjugal relationship outside marriage. "services" does not include a levy, fee, tax or periodic payment imposed by law; "spouse" means the person to whom a person of the opposite sex is married or with whom the person is living in a conjugal relationship outside marriage. 1981, c. 53, s. 9; 1984, c. 58, s. 39; 1997, c. 16, s. 8; 1999, c. 6, s. 28(8). Pregnancy s. 10(2) (2) The right to equal treatment without discrimination because of sex includes the right to equal treatment without discrimination because a woman is or may become pregnant. 1986, c. 64, s. 18(7). Constructive discrimination s. 11(1) Cases
'History 11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where, (a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or (b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. 1986, c. 64,8.18(8), part. Idem--s. 11(2) (2) The Commission, the board of inquiry or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety
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requirements, if any. 1986, c. 64, s, 18(8), part; 1994, c. 27, s, 65(1). Idem-s. 11(3) (3) The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. 1986, c. 64, s. 18(8), part; 1994, c. 27, s. 65(2). Discrimination because of association s. 12 12. A right under Part I is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination. 1981, c. 53, s. 11. Announced intention to discriminate -- s. 13(1) 13. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I. Opinion s. 13(2) (2) Subsection (1) shall not interfere with freedom of expression of opinion. 1981, c. 53,s.l2. Special programs s. 14(1) 14. (1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part I. Review by Commission s. 14(2) (2) The Commission may, (a) upon its own initiative; (b) upon application by a person seeking to implement a special program under the protection of subsection (1); or (c) upon a complaint in respect of which the protection of subsection (1) is claimed, inquire into the special program and, in the discretion of the Commission, may by order declare,
(d) that the special program, as defined in the order, does not satisfy the requirements of subsection (1); or (e) that the special program as defined in the order, with such modifications, if any, as the Commission considers advisable, satisfies the requirements of subsection (1). Reconsideration s. 14(3) (3) A person aggrieved by the making of an order under subsection (2) may request the Commission to reconsider its order and section 37, with necessary modifications, applies. Effect of order - s. 14(4) (4) Subsection (1) does not apply to a special program where an order is made under clause (2)(d) or where an order is made under clause (2)(e) with modifications of the special program that are not implemented. Subs. (2) does not apply to Crown s. 14(5) (5) Subsection (2) does not apply to a special program implemented by the Crown or an agency of the Crown. 1981, c. 53,8.13. Components of employment equity plans s. 14.1 \ ' ^ History J \
14.1 [Repealed 1995, c. 4, s. 3(1)] Age sixty-five or over s. 15 15. A right under Part I to non-discrimination because of age is not infringed where an age of sixty-five years or over is a requirement, qualification or consideration for preferential treatment. 1981, c. 53, s. 14. Canadian Citizenship s. 16(1) 16. (1) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship is a requirement, qualification or consideration imposed or authorized by law. Idem-s. 16(2) (2) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or lawful admission to Canada for permanent residence is a
requirement, qualification or consideration adopted for the purpose of fostering and developing participation in cultural, educational, trade union or athletic activities by Canadian citizens or persons lawfully admitted to Canada for permanent residence, Idem -- s. 16(3) (3) A right under Part I to non-discrimination because of citizenship is not infringed where Canadian citizenship or domicile in Canada with the intention to obtain Canadian citizenship is a requirement, qualification or consideration adopted by an organization or enterprise for the holder of chief or senior executive positions.
1981, c. 53, s. 15.

Handicap - s. 17(1)
History rl : : I ""': '~ ' '' - '

17. (1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of handicap. 1986, c. 64, s. 18(9). Accommodation s. 17(2) (2) The Commission, the board of inquiry or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. Idem ~ s. 17(3) (3) The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. 1986, c. 64, s. 18(10); 1994, c. 27, s. 65(2). Powers of Commission s. 17(4) (4) Where, after the investigation of a complaint, the Commission determines that the evidence does not warrant the subject-matter of the complaint being referred to the board of inquiry because of the application of subsection (1), the Commission may nevertheless use its best endeavours to effect a settlement as to the duties or requirements. 1981, c. 53, s. 16(2); 1986, c. 64, s. 18(11); 1994, c. 27, s. 65(3). Special interest organizations s, 18 18, The rights under Part I to equal treatment with respect to services and facilities, with or without accommodation, are not infringed where membership or participation in a
religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by a prohibited ground of discrimination is restricted to persons who are similarly identified. 1981, c, 53, s. 17. Separate school rights preserved s, 19(1) 19. (1) This Act shall not be construed to adversely affect any right or privilege respecting separate schools enjoyed by separate school boards or their supporters under the Constitution Act, 1867 and the Education Act. Duties of teachers s. 19(2) (2) This Act does not apply to affect the application of the Education Act with respect to the duties of teachers. 1981, c. 5 3 , 8 . 1 8 . Restriction of facilities by sex s. 20(1)
^History
20. (1) The right under section 1 to equal treatment with respect to services and facilities without discrimination because of sex is not infringed where the use of the services or facilities is restricted to persons of the same sex on the ground of public decency. 1981, c. 53, s. 19(1). Minimum drinking age s. 20(2) (2) The right under section 1 to equal treatment with respect to services, goods and facilities without discrimination because of age is not infringed by the provisions of the Liquor Licence Act and the regulations under it relating to providing for and enforcing a minimum drinking age of nineteen years. 1990, c. 15, s. 65. Recreational clubs s. 20(3) (3) The right under section 1 to equal treatment with respect to services and facilities is not infringed where a recreational club restricts or qualifies access to its services or facilities or gives preferences with respect to membership dues and other fees because of age, sex, marital status, same-sex partnership status or family status. 1981, c. 53, s. 19(3); 1999, c. 6, s. 28(9). Tobacco and young persons s. 20(4) (4) The right under section 1 to equal treatment with respect to goods without discrimination because of age is not infringed by the provisions of the Tobacco Control Act, 1994 and the regulations under it relating to selling or supplying tobacco to persons
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23. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. Application for employment s. 23(2) (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. Questions at interview s. 23(3) (3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act. Employment agencies s. 23(4) (4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination hi receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer. 1981, c. 53,s.22. Special employment - s. 24(1) ;/ v^Cases '
* *. * ^ ji* J *^ , History. -. 24. (1) The right under section 5 to equal treatment with respect to employment is not infringed where, (a) a religious, philanthropic, educational, fraternal or social institution or organization that is primarily engaged in serving the interests of persons identified by their race, ancestry, place of origin, colour, ethnic origin, creed, sex, age, marital status, same-sex partnership status or handicap employs only, or gives preference in employment to, persons similarly identified if the qualification is a reasonable and bona fide qualification because of the nature of the employment;
(b) the discrimination in employment is for reasons of age, sex, record of offences, marital status or same-sex partnership status if the age, sex, record of offences, marital status or same-sex partnership status of the applicant is a reasonable and bona fide qualification because of the nature of the employment; (c) an individual person refuses to employ another for reasons of any prohibited ground of discrimination in section 5, where the primary duty of the employment is attending to the medical or personal needs of the person or of an ill child or an aged, infirm or ill spouse, same-sex partner or relative of the person; or (d) an employer grants or withholds employment or advancement in employment to a person who is the spouse, same-sex partner, child or parent of the employer or an employee. 1981, c. 53, s. 23; 1999, c. 6, s. 28(12). Reasonable accommodation -- s. 24(2) (2) The Commission, the board of inquiry or a court shall not find that a qualification under clause (l)(b) is reasonable and bona fide unless it is satisfied that the circumstances of the person cannot be accommodated without undue hardship on the person responsible for accommodating those circumstances considering the cost, outside sources of funding, if any, and health and safety requirements, if any. 1986, c. 64, s. 18(15); 1999, c. 6, s. 28(12). Idem - s. 24(3) (3) The Commission, the board of inquiry or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship. 1986, c. 64, s. 18(15); 1994, c. 27,s.65(4). Undue hardship where employment equity plan exists s. 24.1
24.1 [Repealed 1995, c. 4, s. 3(2)] Employment conditional on membership in pension plan s. 25(1)
25. (1) The right under section 5 to equal treatment with respect to employment is infringed where employment is denied or made conditional because a term or condition of employment requires enrolment in an employee benefit, pension or superannuation plan
or fund or a contract of group insurance between an insurer and an employer, that makes a distinction, preference or exclusion on a prohibited ground of discrimination. Pension or disability plan - s. 25(2) (2) The right under section 5 to equal treatment with respect to employment without discrimination because of age, sex, marital status or family status is not infringed by an employee superannuation or pension plan or fund or a contract of group insurance between an insurer and an employer that complies with the Employment Standards Act and the regulations thereunder. Employee disability and pension plans: handicap s. 25(3) (3) The right under section 5 to equal treatment with respect to employment without discrimination because of handicap is not infringed, (a) where a reasonable and bona fide distinction, exclusion or preference is made in an employee disability or life insurance plan or benefit because of a pre-existing handicap that substantially increases the risk; (b) where a reasonable and bona fide distinction, exclusion or preference is made on the ground of a pre-existing handicap in respect of an employee-pay-all or participant-pay-all benefit in an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and an employer or in respect of a plan, fund or policy that is offered by an employer to employees if they are fewer than twenty-five in number. Compensation s. 25(4) (4) An employer shall pay to an employee who is excluded because of a handicap from an employee benefit, pension or superannuation plan or fund or a contract of group insurance between an insurer and the employer compensation equivalent to the contribution that the employer would make thereto on behalf of an employee who does not have a handicap. 1981, c. 53,s.24. Discrimination in employment under government contracts s. 26(1) 26. (1) It shall be deemed to be a condition of every contract entered into by or on behalf of the Crown or any agency thereof and of every subcontract entered into in the performance thereof that no right under section 5 will be infringed in the course of performing the contract. Idem: government grants and loans s. 26(2) (2) It shall be deemed to be a condition of every grant, contribution, loan or guarantee made by or on behalf of the Crown or any agency thereof that no right under section 5 will be infringed in the course of earning out the purposes for which the grant,
contribution, loan or guarantee was made. Sanction -- s. 26(3) (3) Where an infringement of a right under section 5 is found by a board of inquiry upon a complaint and constitutes a breach of a condition under this section, the breach of condition is sufficient grounds for cancellation of the contract, grant, contribution, loan or guarantee and refusal to enter into any farther contract with or make any farther grant, contribution, loan or guarantee to the same person.
1981, c. 53, s. 25.
PART III THE ONTARIO HUMAN RIGHTS COMMISSION -- ss. 27 to 31

Commission continued s. 27(1) 27. (1) The Ontario Human Rights Commission is continued under the name Ontario Human Rights Commission in English and Commission ontarienne des droits de la personne in French and shall be composed of such persons, being not fewer than seven, as are appointed by the Lieutenant Governor in Council. 1981, c. 53, s. 26(1), revised. Responsible to Minister -- s. 27(2) (2) The Commission is responsible to the Minister for the administration of this Act. Chair - s. 27(3) (3) The Lieutenant Governor in Council shall designate a member of the Commission as chair, and a member as vice-chair. Remuneration s. 27(4) (4) The Lieutenant Governor in Council may fix the remuneration and allowance for expenses of the chair, vice-chair and members of the Commission. Employees - s. 27(5) (5) The employees of the Commission shall be appointed under the Public Service Act. Divisions s. 27(6) (6) The Commission may authorize any function of the Commission to be performed by a division of the Commission composed of at least three members of the Commission, 1981, c. 53,s.26(2-6).
Race relations division s, 28(1) 28. (1) The Lieutenant Governor in Council shall designate at least three members of the Commission to constitute a race relations division of the Commission and shall designate one member of the race relations division as Commissioner for Race Relations, Functions - s. 28(2) (2) It is the function of the race relations division of the Commission to perform any of the functions of the Commission under clause 29(f), (g) or (h) relating to race, ancestry, place of origin, colour, ethnic origin or creed that are referred to it by the Commission and any other function referred to it by the Commission. 1981, c. 53,s.27. Function of Commission -- s. 29
History
29. It is the function of the Commission, (a) to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law; (b) to promote an understanding and acceptance of and compliance with this Act; (c) to recommend for consideration a special plan or program designed to meet the requirements of subsection 14(1), subject to the right of a person aggrieved by the implementation of the plan or program to request the Commission to reconsider its recommendation and section 37 applies with necessary modifications; (d) to develop and conduct programs of public information and education and undertake, direct and encourage research designed to eliminate discriminatory practices that infringe rights under this Act; (e) to examine and review any statute or regulation, and any program or policy made by or under a statute and make recommendations on any provision, program or policy, that in its opinion is inconsistent with the intent of this Act; (f) to inquire into incidents of and conditions leading or tending to lead to tension or conflict based upon identification by a prohibited ground of discrimination and take appropriate action to eliminate the source of tension or conflict; (g) to initiate investigations into problems based upon identification by a prohibited ground of discrimination that may arise in a community, and encourage and co-ordinate plans, programs and activities to reduce or prevent such problems;
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(h) to promote, assist and encourage public, municipal or private agencies, organizations, groups or persons to engage in programs to alleviate tensions and conflicts based upon identification by a prohibited ground of discrimination; (i) to enforce this Act and orders of the board of inquiry; and (j) to perform the functions assigned to it by this or any other Act. 1981, c. 53, s. 28; 1994, c. 27, s. 65(6). Evidence obtained in course of investigation s. 30(1) 30. (1) No person who is a member of the Commission shall be-required to give testimony in a civil suit or any proceeding as to information obtained in the course of an investigation under this Act. Idem -- s. 30(2) (2) No person who is employed in the administration of this Act shall be required to give testimony in a civil suit or any proceeding other than a proceeding under this Act as to information obtained in the course of an investigation under this Act.
1981, c. 53, s. 29.

Annual report s. 31(1) 31. (1) The Commission shall make a report to the Minister not later than the 30th day of June in each year upon the affairs of the Commission during the year ending on the 31st day of March of that year. Idem -- s. 31(2) (2) The Minister shall submit the report to the Lieutenant Governor in Council who shall cause the report to be laid before the Assembly if it is in session, or, if not, at the next session.
1981, c. 53, s. 30.
PART IV ENFORCEMENT -- ss. 32 to 45

Complaints -- s. 32(1) 32. (1) Where a person believes that a right of the person under this Act has been infringed, the person may file with the Commission a complaint in a form approved by the Commission.
Idem - s. 32(2) (2) The Commission may initiate a complaint by itself or at the request of any person, Combining of complaints -- s. 32(3) (3) Where two or more complaints, (a) bring into question a practice of infringement engaged in by the same person; or (b) have questions of law or fact in common, the Commission may combine the complaints and deal with them in the same proceeding
1981, c. 53, s. 31.

Investigation of complaints -- s. 33(1) History,;. - /
33. (1) Subject to section 34, the Commission shall investigate a complaint and endeavour to effect a settlement. Investigation s. 33(2) (2) An investigation by the Commission may be made by a member or employee of the Commission who is authorized by the Commission for the purpose. Powers on investigation -- s. 33(3) (3) A person authorized to investigate a complaint may, (a) enter any place, other than a place that is being used as a dwelling, at any reasonable time, for the purpose of investigating the complaint; (b) request the production for inspection and examination of documents or things that are or may be relevant to the investigation; (c) upon giving a receipt therefor, remove from a place documents produced in response to a request under clause (b) for the purpose of making copies thereof or extracts therefrom and shall promptly return them to the person who produced or furnished them; and (d) question a person on matters that are or may be relevant to the complaint subject to the person's right to have counsel or a personal representative present during such questioning, and may exclude from the questioning any person who may be adverse ir
interest to the complainant. Entry into dwellings s. 33(4) (4) A person investigating a complaint shall not enter a place that is being used as a dwelling without the consent of the occupier except under the authority of a warrant issued under subsection (8). 1981, c. 53, s. 32(1-4). Denial of entry s. 33(5) (5) Subject to subsection (4), if a person who is or may be a party to a complaint denies entry to any place, or instructs the person investigating to leave the place, or impedes or prevents an investigation therein, the Commission may refer the matter to the board of inquiry or may authorize an employee or member to apply to a justice of the peace for a warrant to enter under subsection (8). 1994, c. 27, s. 65(8). Refusal to produce s. 33(6) (6) If a person refuses to comply with a request for production of documents or things, the Commission may refer the matter to the board of inquiry, or may authorize an employee or member to apply to a justice of the peace for a search warrant under subsection (7). 1981, c. 53, s. 32(5, 6); 1994, c. 27, s. 65(9). Warrant for search s. 33(7) (7) Where a justice of the peace is satisfied on evidence upon oath or affirmation that there are hi a place documents that there is reasonable ground to believe will afford evidence relevant to the complaint, he or she may issue a warrant in the prescribed form authorizing a person named in the warrant to search a place for any such documents, and to remove them for the purposes of making copies thereof or extracts therefrom, and the documents shall be returned promptly to the place from which they were removed. Warrant for entry - s. 33(8) (8) Where a justice of the peace is satisfied by evidence upon oath or affirmation that there is reasonable ground to believe it is necessary that a place being used as a dwelling or to which entry has been denied be entered to investigate a complaint, he or she may issue a warrant in the prescribed form authorizing such entry by a person named in the warrant. 1981, c. 53, s. 32(7, 8), revised. Execution of warrant s. 33(9) (9) A warrant issued under subsection (7) or (8) shall be executed at reasonable times as specified in the warrant. Expiration of warrant s. 33(10)
(10) Every warrant shall name a date on which it expires, which shall be a date not later than fifteen days after it is issued. Obstruction -s. 33(11) (11) No person shall hinder, obstruct or interfere with a person in the execution of a warrant or otherwise impede an investigation under this Act. Idem -- s. 33(12) (12) Subsection (11) is not contravened by a refusal to comply with a request for the production of documents or things made under clause (3)(b). Admissibility of copies s. 33(13) (13) Copies of, or extracts from, documents removed from premises under clause (3)(c) or subsection (7) certified as being true copies of the originals by the person who made them, are admissible in evidence to the same extent as, and have the same evidentiary value as, the documents of which they are copies or extracts. 1981, c. 53, s. 32(9-13). Decision to not deal with complaint -- s. 34(1) 34. (1) Where it appears to the Commission that, (a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act; (b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith; (c) the complaint is not within the jurisdiction of the Commission; or (d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay, the Commission may, in its discretion, decide to not deal with the complaint.
Notice of decision and reasons ~ s. 34(2) (2) Where the Commission decides to not deal with a complaint, it shall advise the complainant in writing of the decision and the reasons therefor and of the procedure under section 37 for having the decision reconsidered.
1981, c. 53, s. 33,
Board of inquiry -- s. 35(1)
35. (1) There shall be a board of inquiry for the purposes of this Act composed of such members as are appointed by the Lieutenant Governor in Council. Remuneration s. 35(2) (2) The members of the board of inquiry shall be paid such allowances and expenses as are fixed by the Lieutenant Governor in Council. 1981, c. 53, s. 34; 1994, c. 27, s. 65(10), part. Chair, vice-chair -- s. 35(3) (3) The Lieutenant Governor in Council shall appoint a chair and may appoint one or more vice-chairs of the board of inquiry from among the members of the board of inquiry. Employees s. 35(4) (4) Such employees as are considered necessary for the proper conduct of the board of inquiry may be appointed under the Public Service Act. Rules - s. 35(5) (5) The board of inquiry may make rules regulating its practice and procedure and generally for the conduct and management of its affairs and such rules are not regulations within the meaning of the Regulations Act. Panels - s. 35(6) (6) The chair of the board of inquiry may appoint panels composed of one or more members of the board to hold hearings in the place of the full board wherever the board of inquiry is required to hold a hearing under this Act and, where a panel holds a hearing, the panel has all the powers and duties, except the power in subsection (5), given to the board of inquiry under this Act. Person designated to preside over panel s, 35(7) (7) The chair of the board shall designate one member of each panel to preside over the panel's hearings,
Reassignment of panel s. 35(8) (8) Where a panel of the board is unable for any reason to exercise the powers under section 39 or 41, the chair of the board of inquiry may assign another panel in its place. 1994, c. 27, s.65(10), part. Referred to board of inquiry -- s. 36(1)
Cases,
.*
^^^^^^^^^^^^jj^^^^^^^^J
History'";
-j
36. (1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry. 1981, c. 53, s. 35(1); 1994, c. 27, s. 65(12). Notice of decision not to appoint inquiry -- s. 36(2) (2) Where the Commission decides to not refer the subject-matter of a complaint to the board of inquiry, it shall advise the complainant and the person complained against in writing of the decision and the reasons therefor and inform the complainant of the procedure under section 37 for having the decision reconsidered. 1981, c. 53, s. 35(2); 1994, c. 27, s. 65(13). Reconsideration s. 37(1) 37. (1) Within a period of fifteen days of the date of mailing the decision and reasons therefor mentioned in subsection 34(2) or subsection 36(2), or such longer period as the Commission may for special reasons allow, a complainant may request the Commission to reconsider its decision by filing an application for reconsideration containing a concise statement of the material facts upon which the application is based. Notice of application s. 37(2) (2) Upon receipt of an application for reconsideration the Commission shall as soon as is practicable notify the person complained against of the application and afford the person an opportunity to make written submissions with respect thereto within such time as the Commission specifies. Decision - s. 37(3) (3) Every decision of the Commission on reconsideration together with the reasons
therefor shall be recorded in writing and promptly communicated to the complainant and the person complained against and the decision shall be final. 1981, c. 53,8.36. Appointment of board s. 38
History
38. [Repealed 1994, c. 27, s. 65(14)] Hearing - s. 39(1)
39. (1) The board of inquiry shall hold a hearing, (a) to determine whether a right of the complainant under this Act has been infringed; (b) to determine who infringed the right; and (c) to decide upon an appropriate order under section 41, and the hearing shall be commenced within thirty days after the date on which the subject-matter of the complaint was referred to the board. 1981, c, 53, s, 38(1); 1994, c. 27, s. 65(15).
Parties - s. 39(2) (2) The parties to a proceeding before the board of inquiry are, (a) the Commission, which shall have the carriage of the complaint; (b) the complainant; (c) any person who the Commission alleges has infringed the right; (d) any person appearing to the board of inquiry to have infringed the right; (e) where the complaint is of alleged conduct constituting harassment under subsection 2(2) or subsection 5(2) or of alleged conduct under section 7, any person who, in the opinion of the board, knew or was in possession of facts from which the person ought reasonably to have known of the conduct and who had authority to penalize or prevent the conduct. 1981, c, 53, s. 38(2); 1994, c. 27, s, 65(16).
Adding parties - s, 39(3) (3) A party may be added by the board of inquiry under clause (2)(d) or clause (2)(e) at any stage of the proceeding upon such terms as the board considers proper. 1981, c, 53, s. 38(3). " Adjournment OK production -- s. 39(4) (4) Where the board exercises its power under clause 12(l)(b) of the Statutory Powers Procedure Act to issue a summons requiring the production in evidence of documents or things, it may, upon the production of the documents or things before it, adjourn the proceedings to permit the parties to examine the documents or things. 1981, c. 53, s. 38(4); 1994, c. 27, s. 65(17). Adjournment for view ~- s. 39(5) (5) The board may, where it appears to be in the interests of justice, direct that the board and the parties and their counsel or representatives shall have a view of any place or thing, and may adjourn the proceedings for that purpose. 1981, c. 53, s. 38(5). Members at hearing not to have taken part in investigation, etc. -- s. 39(6) (6) A member of the board of inquiry hearing a complaint must not have taken part in any investigation or consideration of the subject-matter of the inquiry before the hearing and shall not communicate directly or indirectly in relation to the subject-matter of the inquiry with any person or with any party or any parry's representative except upon notice to and opportunity for all parties to participate, but the board may seek legal advice from an adviser independent of the parties and in such case the nature of the advice shall be made known to the parties in order that they may make submissions as to the law. 1994, c. 27, s. 65(18). Recording of evidence s. 40
40. [Repealed 1994, c. 27, s. 65(19)] Orders of boards of inquiry -- s. 41(1)
;;;,,- History. 41. (1) Where the board of inquiry, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the board may, by order, (a) direct the party to do anything that, in the opinion of the board, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and (b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish. 1981, c. 53,s.40(l). Order to prevent harassment -- s. 41(2) (2) Where the board of inquiry makes a finding under subsection (1) that a right is infringed on the ground of harassment under subsection 2(2) or subsection 5(2) or conduct under section 7, and the board finds that a person who is a party to the proceeding, (a) knew or was in possession of knowledge from which the person ought to have known of the infringement; and (b) had the authority by reasonably available means to penalize or prevent the conduct and failed to use it, the board shall remain seized of the matter and upon complaint of a continuation or repetition of the infringement of the right the Commission may investigate the complaint and, subject to subsection 36(2), request the board to re-convene and if the board finds that a person who is a party to the proceeding, (c) knew or was in possession of knowledge from which the person ought to have known of the repetition of infringement; and (d) had the authority by reasonably available means to penalize or prevent the continuation or repetition of the conduct and failed to use it, the board may make an order requiring the person to take whatever sanctions or steps are reasonably available to prevent any further continuation or repetition of the infringement of the right. 1981, c, 53, s, 40(4); 1994, c. 27, s. 65(20).
Reappointment of board s. 41(3) (3) [Repealed 1994, c. 27, s. 65(21)] Costs - s. 41(4) (4) Where, upon dismissing a complaint, the board of inquiry finds that, (a) the complaint was trivial, frivolous, vexatious or made in bad faith; or (b) in the particular circumstances undue hardship was caused to the person complained against, the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.
Decision within 30 days s. 41(5) (5) The board of inquiry shall make its finding and decision within thirty days after the conclusion of its hearing. 1981, c. 53, s. 40(6, 7). Orders re employment equity plans s. 41.1 ....,, _ History. , >t \ \
41.1 [Repealed 1995, c. 4, s. 3(3)] Appeal from decision of board of inquiry s. 42(1)
/t^ History^ .^ Jy 42. (1) Any party to a proceeding before the board of inquiry may appeal from a decision or order of the board to the Divisional Court in accordance with the rules of court. 1981, c. 53, s. 41(1); 1994, c. 27, s. 65(23). Record to be filed in court s. 42(2) (2) Where notice of an appeal is served under this section, the board of inquiry shall forthwith file in the Divisional Court the record of the proceedings before it in which the
decision or order appealed from was made and the record, together with a transcript of the oral evidence taken before the board if it is not part of the record of the board, shall constitute the record in the appeal. Powers of court s. 42(3) (3) An appeal under this section may be made on questions of law or fact or both and the court may affirm or reverse the decision or order of the board of inquiry or direct the board to make any decision or order that the board is authorized to make under this Act and the court may substitute its opinion for that of the board. 1981, c. 53, s. 41(2, 3). Settlements s. 43 43. Where a settlement of a complaint is agreed to in writing, signed by the parties and approved by the Commission, the settlement is binding upon the parties, and a breach of the settlement is grounds for a complaint under section 32, and this Part applies to the complaint in the same manner as if the breach of the settlement were an infringement of a right under this Act. 1981, c. 53, s. 42. Penalty - s. 44(1) ^History -,f 44. (1) Every person who contravenes section 9, subsection 33(11), or an order of the board of inquiry, is guilty of an offence and on conviction is liable to a fine of not more than $25,000. 1981, c. 53, s. 43(1); 1994, c. 27, s. 65(23). Consent to prosecution s. 44(2) (2) No prosecution for an offence under this Act shall be instituted except with the consent in writing of the Attorney General. 1981, c. 53, s. 43(2). Acts of officers, etc s. 45(1) History^-- -..; ** \
45. (1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 44(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization. 1981, c. 53, s. 44(1),
Opinion re authority or acquiescence s, 45(2) (2) At the request of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization, the board of inquiry in its decision shall make known whether or not, in its opinion, an act or thing done or omitted to be done by an officer, official, employee or agent was done or omitted to be done with or without the authority or acquiescence of the corporation, trade union, trade or occupational association, unincorporated association or employers' organization, and the opinion does not affect the application of subsection (1). 1981, c. 53, s. 44(2); 1994, c. 27, s. 65(23).
PARTY GENERAL -- ss. 46 to 48

Definitions s. 46
ii_^li_îHilJi^L_ '" J ~ _ L ' - . . ' * *
?^;:"History-";.-.' ' ' '"''.. I ' "" -A.i

46. In this Act, "board of inquiry" means the board of inquiry established under section 35; 1994, c. 27, s. 65(24). "Commission" means the Ontario Human Rights Commission; "Minister" means the member of the Executive Council to whom the powers and duties of the Minister under this Act are assigned by the Lieutenant Governor in Council; "person" in addition to the extended meaning given it by the Interpretation Act, includes an employment agency, an employers' organization, an unincorporated association, a trade or occupational association, a trade union, a partnership, a municipality, a board of police commissioners established under the Police Act, being chapter 381 of the Revised Statutes of Ontario, 1980, and a police services board established under the Police Services Act. 1981, c. 53,s.45.
Act binds Crown s. 47(1) 47. (1) This Act binds the Crown and every agency of the Crown. Act has primacy over other Acts s. 47(2) (2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, tills Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.
1981, c. 53,s.46(l,2), Regulations s. 48 History 48. The Lieutenant Governor in Council may make regulations, (a) prescribing standards for assessing what is undue hardship for the purposes of section 11, 17 or 24; (a.l) prescribing the manner in which income information, credit checks, credit references, rental history, guarantees or other similar business practices may be used by a landlord in selecting prospective tenants without infringing section 2, and prescribing other similar business practices and the manner of their use, for the purposes of subsection 21(3). (b) prescribing forms and notices and providing for their use. (c) prescribing time limits for the production of documents and things requested in an investigation under clause 33(3)(b); (d) prescribing procedures for carrying out an investigation under section 33; (e) prescribing matters that the Commission shall consider in deciding whether or not to endeavour to effect a settlement under subsection 33(1).* *[Note: Legislative Counsel has advised that els. (d), (e) and (f) as enacted by 1994, c. 27, s. 65(25) will editorially be changed to read els. (c), (d) and (e).] 1981, c. 53, s. 47; 1986, c. 64, s. 18(17); 1994, c. 27, s. 65(25); 1997, c. 24, s. 212(2).
RELATED PROVISION
- 1994, c. 27,s.65(ll):
(11) Any hearing commenced by a board of inquiry appointed under the Human Rights Code as it read immediately before the coming into force of subsection (10) of this section maybe continued to its conclusion as if subsection (10) were not in force.
AMENDMENTS NOT IN FORCE

-1994, c. 27, s. 65(7): (Tj Subsection 33(1) of the Code is repealed and the following substituted:
Investigation of complaints (1) Subject to section 34, the Commission shall investigate a complaint and may endeavour to effect a settlement.
Regulations under the Act

:HuTiarv Righte Code
Regulation 642 O. Reg. 290/98 SEARCH AND ENTRY WARRANTS BUSINESS PRACTICES PERMISSIBLE TO LANDLORDS IN SELECTING PROSPECTIVE TENANTS FOR RESIDENTIAL ACCOMMODATION
Regulation 642 -- SEARCH AND ENTRY WARRANTS

, Menu of .RegIllations, _' 1. A search warrant under subsection 33(7) of the Act shall be in Form 1. O. Reg. 252/90,s.l. 2. A warrant to enter under subsection 33(8) of the Act shall be in Form 2. 0. Reg. 252/90, s. 2.
FORM1
Warrant to Search under Subsection 33(7) of the Human Right Code
O. Reg. 252/90, Form 1
FORM 2
Warrant to Enter under Subsection 33(8) of the Human Rights Code
0. Reg. 252/90, Form 2
O. Reg. 290/98 - BUSINESS PRACTICES PERMISSIBLE TO LANDLORDS IN SELECTING PROSPECTIVE TENANTS FOR RESIDENTIAL ACCOMMODATION
Menu of Regulations In force June 17,1998 Amended O. Reg. 31/00; in force March 1, 2000 1. (1) A landlord may request credit references and rental history information, or either of them, from a prospective tenant and may request from a prospective tenant authorization to conduct credit checks on the prospective tenant. (2) A landlord may consider credit references, rental history information and credit checks obtained pursuant to requests under subsection (1), alone or in any combination, in order to assess the prospective tenant and the landlord may select or refuse the prospective tenant accordingly. (3) A landlord may request income information from a prospective tenant only if the landlord also requests information listed in subsection(l). (4) A landlord may consider income information about a prospective tenant in order to assess the prospective tenant and the landlord may select or refuse the prospective tenant accordingly only if the landlord considers the income information together with all the other information that was obtained by the landlord pursuant to requests under subsection (1), (5) If, after requesting the information listed in subsections (1) and (3), a landlord only obtains income information about a prospective tenant, the landlord may

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THE LEGAL ENVIRONMENT FOR HUMAN RESOURCE MANAGERS

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