Editor's note: An Oakville, Ont., auto repair shop owner was recently sentenced to seven days in jail and six months' probation after barring health and safety inspectors from entering the shop. Karen Sargeant, a lawyer in McCarthy Tétrault's labour and employment group, offers the following tips to employers on the proper way to act in such a situation.
In most provinces, occupational health and safety legislation provides for certain day-to-day regulations and inspections. For example, in Ontario, the Ministry of Labour employs inspectors who attend workplaces to ensure general compliance with health and safety laws (akin to audits).
They also investigate workplace accidents, often with a view to prosecuting the employer and others. Inspectors generally have very broad powers to enter a workplace, interview employees and seize records, samples or equipment.
The following tips will help organizations if and when an inspector arrives at the door.
Before an inspector arrives
• designate one contact person at each location;
• develop procedures for dealing with inspectors and train staff in those procedures;
• maintain a separate file for material over which the company wants to claim solicitor-client privilege; and
•keep in-house or outside legal counsel apprised of any situations that may increase the likelihood of an inspection.
When an inspector arrives
• Immediately contact the designated contact person.
• Check the person’s identification.
• Ask the inspector what the purpose of his visit is. Is it an general audit or a more specific investigation? Are they investigating in aid of a possible prosecution?
• Consider immediately contacting legal counsel.
• Have someone (ideally the designated contact person) accompany the inspector at all times.
• Be careful not to obstruct the investigation. However, you may be able to make alternate arrangements for the time and date of the inspection.
• Keep notes of everything the inspector does and says in his visit.
• Remember that anything you say, even if you think it is off the record, may be recorded by the inspector and used against the employer or you later.
• Keep a record of all documents and other items taken by the investigator.
• Co-operate in any interviews but consider asking the inspector to return later to conduct the interviews. This will give legal counsel an opportunity to meet with anyone to be interviewed before the interview.
• Request that legal counsel or another employer representative be present in any interviews. If the interviews may lead to prosecution, the individuals have a right to have counsel present.
• Ensure that everyone answers all interview questions fully and honestly.
• If the inspector has a search warrant, immediately contact legal counsel and ask the inspector to wait until your legal counsel has arrived. Although inspectors have no obligation to wait, most will.
• If you have any objections to anything the inspector is doing, note your objections on paper but do not attempt to obstruct the search.
• Do not underestimate the important of an inspector’s visit. Information gathered by an inspector could form the basis for a prosecution down the road. Everything you say or do during an investigation is therefore very important.
Karen Sargeant is a partner in McCarthy Tétrault’s labour and employment group in Toronto. For more information visit www.mccarthy.ca or contact firstname.lastname@example.org.
Auto repair shop owner sentenced to seven days in jail