By Norm Keith
Special to Ontario Construction News
Recent reports of misconduct by Occupational Health and Safety (OHS) inspectors in Ontario has garnered national attention.
News sources as diverse as the Toronto Star, trade media and the Toronto Sun have covered reports of the investigation and termination of anywhere from 22 to 50 OHS inspectors in Ontario for just cause.
This recent rash of revelations of misconduct largely, but not exclusively, stems from the assignment of OHS inspectors to police the “underground economy” in Ontario. While the misconduct and termination of OHS inspectors is nothing new, the sheer size of the recent wave of misconduct is staggering.
Further, the misconduct may reveal a deeper problem at the Ministry of Labour, Immigration, Training, and Skills Development (MLITSD).
Unprecedented wave
This recent wave of internal investigations, suspensions, terminations and resignations in Ontario is unprecedented. Most stem from the involvement of OHS inspectors in the provincial underground economy initiative to find businesses and contractors who were not remitting tax revenue to the province.
The underground economy blitz involved assigning MLITSD inspectors to work overtime to visit employers who may be subjecting workers in vulnerable populations to unsafe conditions and paying them less than minimum wage. It has been reported that, by using vehicle tracking technology, the MLITSD compared overtime records to work actually done, and large numbers of OHS inspectors were determined to have violated internal codes of conduct and public servant legislation.
There have been, from time to time, other examples of OHS inspectors “gone bad” in Ontario. One industrial inspector was charged by Toronto police with extortion, breach of trust, and accepting money in a “cash for clean inspections” scam.
The inspector conducted safety audits of industrial businesses and promised to look the other way when finding safety infractions if the business owner gave him cash. This fraud was revealed when the business refused to pay and called police, resulting in criminal charges.
Code of conduct
OHS inspectors must comply with the MLITSD Mission Statement, the Regulator’s Code of Conduct and the public service standards legislation. The Ministry’s Mission Statement reads as follows: “We protect workers, help people get training and jobs, help employers find and develop skilled employees, and contribute to a prosperous and stable economy”.
The Regulator’s Code of Practice, issued in 2020, makes a public commitment to perform activities in a professional manner to help businesses and other regulated entities to comply and succeed with “honesty and integrity … (and)… respect.” OHS inspectors are also required to comply with the ethical requirements of the Ontario Public Service.
The key takeaways are that the public must be able to rely upon those in positions of authority and trust to behave and conduct themselves properly. But given the sheer size of the number of OHS inspectors engaging in this type of activity and misconduct, does this mean there is a bigger problem at the MLITSD?
Perhaps this recent spate of internal investigations, suspensions and terminations of inspectors is part of a larger problem at the top.
Three key issues
Our insight and experience tells us that there are at least three issues at play: lack of oversight, underfunding, and mission creep.
Lack of effective oversight of OHS inspectors has allowed this problem to exist and be so widespread over the last several years. Inspectors report to program managers and the program managers report to an area director.
Managers are not required to be in the field with OHS inspectors and they do most of their work unsupervised. Some of the managers have no field experience or background as inspectors and therefore are ill equipped to perform their supervisory function. Area directors are responsible for all the programs under the MLITSD, not just OHS compliance. Directors deal with employment standards, consumer protection, OHS compliance and enforcement, and now have an “immigration” responsibility added to the identity of their government Ministry.
Underfunding may also be part of the problem. As inflation continues at 40 year historic levels, wages for OHS inspectors have not kept up with increases in the private sector.
For years, OHS inspectors have complained about being paid less than industry professionals. This may give rise to resentment, greed, and eventual self-justification of cheating on overtime claims and fraudulent field reports to justify the overtime.
Mission creep has also been taking place at the MLITSD.
Although the MLITSD has a clear mission statement, it is often overridden by political goals and ad hoc workplace blitzes based on flavour of the month priorities.
Many OHS inspectors joined the MLITSD with the goal of preventing accidents and protecting workers.
However, with a quota of 240 field visits per year, and an over emphasis on prosecutions, inspectors have been pushed into acting as high-volume OHS cops who gather revenue for safety violations.
From ticketing workers who do not have their hard hat on to complex prosecutions with multi-million dollars fines at stake, prevention is the last thing the OHS inspectors have time for.
So when inspectors were assigned to do overtime to spy and report back on the underground economy for provincial finance interests, have they been given a collection agency role for the government? The mission has been confused, and contradiction and mission creep has allegedly undermined their morale.
The bottom line is MLITSD has a serious internal ethical problem that has occupied a great deal of time, attention and taxpayers’ money.
The long-term damage to the reputation of honest OHS inspectors will linger for years. Perhaps it is time for MLTSD leadership to not only address this accountability problem and improve oversight, but also deal with the broader issues discussed above.
Finally, this crisis is an opportunity for a mission reorientation for inspectors from being OHS police to the more worthy goal of improving workplace safety for workers.
Norm Keith is a management-side employment and labour lawyer at KPMG Law LLP. Most notably he is one of the leading Occupational Health and Safety (OHS) lawyers in Canada. Additionally, Norm represents businesses in regulatory and white-collar crime investigations. He has successfully defended more than 1,000 OHS regulatory, criminal and related charges. For more information, visit https://kpmg.com/ca/en/home/contacts/k/norm-keith.html