What to Do When Regulators Come A-knocking
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The document provides guidance on how to prepare for and handle workplace inspections and investigations conducted by provincial regulatory officers. It outlines the differences between inspections and investigations and notes constitutional protections that apply to investigations but not inspections. The key recommendations are to have standard operating procedures in place, train employees on the procedures, remain calm and courteous but assertive if a regulator arrives, determine if it is an inspection or investigation, contact a lawyer if needed, take notes during any investigation, and always be prepared by keeping areas clean of unnecessary documents.
What to Do When Regulators Come A-knocking
- 1. WHAT TO DO WHEN THE REGULATOR COMES A-KNOCKING David Crocker
- 3. Section 54 of the Occupational Health and Safety Act (“OHSA”) provides Provincial Officers with broad inspection powers.
- 4. For an investigation, however, there are constitutional protections which limit what an Officer can do.
- 5. Section 8 of Charter protects against unreasonable search and seizure.
- 6. You must know, therefore, the difference between an inspection and an investigation to assert your rights.
- 7. INSPECTION: • To determine compliance with OHSA or its Regulations
- 8. INVESTIGATION: Old Test: If Officer has reasonable and probable grounds to believe an offence has been committed New Test: Whether the predominant purpose of the Officer’s attendance is to gather evidence to determine penal liability, establishing an adversarial relationship
- 9. Provincial Officers with the Ministry of Labour are authorized to conduct both workplace inspections and workplace investigations.
- 10. They often start with an inspection which evolves into an investigation. This means you have to be on your toes if you want to take advantage of your Charter Rights.
- 11. HOW TO PREPARE FOR THE REGULATOR: • Have Standard Operating Procedures (“SOP”) • Know how to contact the Management Team • Have a telephone tree or other contact system – and continuously update it • Train everyone on SOP and their use
- 12. GREETING THE REGULATOR: • Probably most important stage of visit • Your chance to assert some control over the process • Always have someone on-site trained to deal with the Regulator • Train security/reception to take routine information from the investigator: • name, badge number, if applicable, get a card, have him/her sign in • Have him/her wait until you are ready
- 13. HE/SHE SHOULD: • Remain calm • Be courteous – never antagonize • Be assertive – never aggressive • Ask investigator to wait for the Trained Management Representative to meet him/her
- 14. THE TRAINED MANAGEMENT REPRESENTATIVE SHOULD ASK THE INVESTIGATOR: • What’s the purpose of your attendance? • Is this an inspection or an investigation? • If it’s an investigation: • what’s the potential offence/infraction? • is it just the company or employees too?
- 15. ASK IF HE HAS A WARRANT: • Advise that you want to make two telephone calls • To your lawyer • To the Senior Person on the telephone tree
- 16. IF HE HAS A WARRANT: • Read it carefully to counsel • It restricts what the Officer needs to do WHILE THIS IS GOING ON, KEEP THE INVESTIGATOR IN A BOARD/MEETING ROOM
- 17. THE INVESTIGATION: • Make sure there is at least one Management Representative always with the Investigator • Take notes • Use regular safety protocols • Make a list of documents taken or photos taken • If there is any question about whether a specific document should be taken, consult counsel
- 18. BEFORE OFFICER LEAVES: • Ask him/her to sign your notes • Decline any request to sign a statement REMEMBER: • Anything said can be used to support their case • Do not mistake apparent friendliness for anything real
- 19. DAY-TO-DAY PREPAREDNESS: • Keep all desks clear of paper that is not presently being used • Keep all file cabinets and other storage areas closed • Keep all common areas – e.g. kitchens, waiting/meeting rooms free of any “work related” papers or documents
- 20. SOP: • So everybody knows the drill RECORD KEEPING: • Records should always be kept • Will help to establish due diligence, if necessary