Fines Hit Volunteers in Parry Sound

At Rental News, we usually try to deliver information that would apply to landlords, tenants and those looking to rent vacation or commercial properties. This subject may not appear to be directly related to the rental market but it in fact has a huge impact on the economic condition within communities therefore affecting how we may make decisions with respect to renting or buying real estate. Employment income affects how a tenant will determine the type of rental they will be seeking and business revenue has a direct impact on whether or not expansion is possible. If a business wishes to open another branch of its operation or if they wish to move to a larger location in order to accommodate a growing company, they quite possibly will be considering a leasing opportunity. The fact that the Ontario government is ignoring the impact that their policies are having on employers and in turn, employees is a disturbing scenario in today’s economic climate.

Many people in the province have begun to experience the result of increased fuel prices and the impact of a higher Canadian dollar. Those in Oshawa facing the shut down of the factory where they have been working for years may be attempting to alter the decision but will soon have to face the reality that they must begin seeking alternative employment. As these individuals present themselves to prospective employers, they must be aware of the challenges that companies, businesses and supervisors face on a daily basis. The attitude of; give me my job back or else, that has been practiced by some battling the closure of a automobile factory will not sit well with companies considering hiring new workers. Employers that are forced to submit to employee demands as well as ongoing, complex and obsolete government policy may become less and less interested in hiring new workers. Instead, they may choose to alter operations in order to reduce red tape and hassle in the interest of remaining competitive and profitable in a global market.

The incident that inspired me to draw attention to the situation involved not a company seeking to increase profits or a business attempting to expand operation but a volunteer group who’s focus and efforts are intended to draw attention to their local community and to increase tourism activity during off season months. This not-for-profit organization was formed so that winter activities could be promoted in a region where summer attractions was historically the only source of tourism revenue for the area. By developing and maintaining a trail system that could be enjoyed by families and individuals wishing to experience nature by snowmobile, the club has had an impressive impact on the economic prosperity of its community. The region affected is Parry Sound and surrounding Municipalites that include Mactier, Rosseau, Carling Township, Point au Baril, Port Loring, Magnetawan, Sprucedale, McKellar, Dunchurch and a charming little place affectionately known as Ardbeg.

The efforts of this association are not unique to the Parry Sound District. Groups all over Ontario have formed to enhance winter activity and promote their communities to travelers and adventure seekers not only from Ontario but also from neighboring provinces, the United States and even other countries such as Mexico and Italy to name a few. Snowmobile clubs and associations in Ontario have been run by Volunteers for years and have contributed to the success of businesses, charities and local initiatives by encouraging people to get out and enjoy nature and winter in a fun and thrilling way.

As the sport expands and becomes more popular, clubs have found that it is easier to deliver more consistent trail conditions and services by hiring some administrative employees and paying groomer operators for the hours that they spend smoothing out the snow covered trails. The system works well as many skilled machine operators may find themselves with reduced work schedules during the winter months and can easily commit a few nights to grooming the local snowmobile trails. Other positions are filled by retired residents that enjoy getting out in the groomer to support their community and earn a few dollars at the same time. This practice however comes with it’s own set of complications. As an “employer”, associations now must operate in the same manner as a company with respect to government policy & procedure. The volunteers that sit on the board and hold official titles as officers within the association are now required to administer employment regulations as identified in the Employment Standards Act (ESA) and the Occupational Health and Safety Act (OHSA). The Ministry of Labour (MOL) is responsible for enforcing labour law and will prosecute any employer or supervisor that they suspect are guilty of not following regulation correctly.

The general public may believe that those who are charged and convicted of failing to meet guildines are actually guilty of failing to act responsibly with respect to their staff. If this is true then the conviction and subsequent fines will hopefully instill a sense of importance to the employer and assist in ensuring that operations become safe for future workers. This would be a positive result from the application of OHSA law. Unfortunately, like with many legal matters, the guilty are not always convicted and the innocent are often found defending themselves against a prosecution with resources and strategy that far exceed what they can afford to fight. Such an event recently took place that involved the volunteer snowmobile club in the Parry Sound area.

The story begins over a year ago when an error on the part of a groomer operator resulted in an accident that resulted in his tragic death. The loss of this much loved and well respected man shook the Parry Sound region as well the snowmobile community as a whole. The MOL stepped in to investigate the incident as the operator was a paid worker of the Parry Sound Snowmobile Association (PSSD). Almost one year after the accident, the MOL charged the Association and it’s President with 4 charges each under the OHSA. The charges carried maximum fines of $500,000.00 per charge for the Association and $25,000.00 per charge plus 1 year in jail per charge against the President of the group. The President, as well as the rest of the executive are all volunteer members that invest their time and money towards the development and promotion of off season tourism within their area.

The case recently ended in the PSSD pleading guilty to one of the 4 charges against them while the four charges against the person who had been President were dropped. The conviction was for failing to have a health and safety policy book written and in place within the PSSD office. The fine for the infraction was set at $35,000.00 plus 25% for the Victims of Crime fund. The club and former president are responsible for their own legal fees so that they could be represented in court. Some suggest that fees in a case such as this could easily exceed $50,000.00 just to bring the matter to this stage alone. The decision suggests that the lack of a policy book in an office that had absolutely no impact on the accident that occurred was worth a cost of over $75,000.00 to the club not to mention the months of stress and anxiety that was experienced by club members. The former President has been living with the knowledge that if she cannot prove the innocence of the club to a judge, the organization she has devoted her energy to for years could easily be destroyed. This woman has never received a paycheck for her efforts and her only benefit for being the President is knowing that her volunteer work has brought economic security to the region and joy to all that have had the pleasure of touting the trails maintained by the PSSD. The fact that she faced jail time and thousands in fines was secondary to her desire to protect the club members, staff and the sport. Her commitment came easily to her as she knew that the man who lost his life would have surely done the same thing if he was in her shoes. He was just as devoted and would have resented his friends being prosecuted so ruthlessly when the accident was clearly not of their doing in any way.

This case is just one example of how the MOL routinely charges individuals in order to have leverage against a corporation for the purpose of securing convictions that carry significant fines. The reports of companies and individuals pleading guilty so that their legal costs are kept to a minimum are common. The MOL is seen by many employers as a bully that is more interested in racking up convictions than improving workplace safety. It is easy to understand the employer’s frustration with respect to the OHSA as the regulations are often extremely difficult for the average person to understand and interpret never mind implement. They are forced to hire expensive consultants or attend inconvenient courses that quickly cut into the bottom line.

MOL regulations require employers to train staff in tasks that most would consider to be common sense. The recent conviction of the Toys’R’Us store that was forced to pay $50,000.00 plus 25% Victim surcharge and legal cost because a worker tried to descend on a ladder backwards resulting in a fall was convicted of failing to teach the worker how to use a ladder. The fact is that employees or workers cannot be held accountable for their own actions. They can make poor decisions while working without fear of being required to take responsibility.

The law even dictates that if a worker receives training on certain subjects provided by their employer, that training would have to be re-done should they change employers. It is not transferable from one job to the next which in itself can skyrocket to cost of hiring new staff. If an electrical company hires a worker, sends them to training and then after a few weeks, that worker decides to quit or take another job, the employer is out the cost of the training and must start the process again with a new worker. They can’t get the employee started and wait to see if they will remain on prior to investing in the training. That would be against the law because the worker must be trained at the employers expense prior to starting any work.

The investment for many firms is significant when it comes to hiring staff. Whether it is a small business just starting out or a large company trying to compete in international markets, hiring workers is a risk that must be weighed against the value the employee rings to the firm. There is no surprise that companies are considering sub-contractors and farming out operations to other countries where regulations are more manageable.

The Canadian government has been making it’s own effort to contribute to the problem. The take individuals on Employment Insurance (EI) and pay for them to learn a skill. In this example, they pay for someone to trained as a heavy equipment operator at a cost of roughly $18,000 per student as stated by one of the students. They then proceed to “train” the individual on several different machines before presenting the trainee with their “Certificate”. This certification is intended to qualify the person to work for a construction or landscape company as a machine operator. The only problem is that the graduates of this program have a great deal of difficulty in getting a job as an operator. A business that has invested $300,000.00 in an excavator would rarely hire an individual that has no experience, no vested interest in the business and who has not had to invest any of their own money in their operator training. Even an administrative assistant must invest in their education before being hired by a firm that is willing to entrust them with a computer worth significantly less that $300,000.00. That computer system is in no way capable of the damage or injury that can be caused by an excavator.

The newly certified machine operator proceeds to seek out employment. They call upon a small landscape company, certificate in hand, and proceed to sell themselves as a qualified operator that the company should hire at once. The operator is given a practical interview and is asked to maneuver a compact excavator throughout several basic tasks. The operator is stopped after only 2 movements as it is obvious that allow him to continue would surely mean significant damage to the machine or nearby equipment & structures. As the “certified” operator exit’s the machine, they neglect to secure the safety lock allowing the boom to swing out of control in the direction of other workers. Fortunately, another employee is able to secure the machine. It is clear that this “certified” operator is nowhere near being ready to work in the practical environment that they supposedly trained for. Not just because of lack of experience but because they simply ignored basic safety procedures that apply to all equipment. A comparison would be getting out of you car prior to putting it in park. The damage and injury that is sure to follow such an error is serious but it is magnified when dealing with heavy equipment.

The point that all of these situations demonstrate is that the government regulations fail to prepare workers and are quick to prosecute employers. We have students that are writing exams this week at the local high schools. Some of the are getting ready to start a summer job. Perhaps they will be laying sod for a landscape company or serving ice caps at the local coffee shop. Are they prepared to work safely? Is it the job of the employer to first spend 2 weeks training the worker how to mop a floor or use a shovel? Should the employer be expected to review with the worker the proper technique to pouring coffee without burning themselves or lift a roll of sod without injuring their back? Is it the employer’s duty to instruct the worker on the importance of using gloves while cleaning up garbage so as to not expose themselves to bacteria and germs and to educate the landscape worker about the need to use sunscreen while working outside?

A suggestion could be that students in grade 7 & 8 are given this information as part of a health and safety program during health class and reviewed in science class. If our government sees Toy’s-R-Us as guilty of not instructing proper ladder use and the Parry Sound Snowmobile District as delinquent for not acquiring a health and safety policy book, then shouldn’t we be introducing young people to the issues surrounding the OHSA as well as ways to create a safe workplace?

The issues here go far further and deeper that the points discussed here. The behavior of the MOL inspectors and prosecutors require review. Employers are entitled to be heard on matters of the OHSA and should not have to feel intimidated or coerced into taking a plea because they are unable to afford a legal defense. The MOL should have to provide adequate evidence prior to laying charges against employers. In the event that the MOL is unable to prove that an employer is at fault and instead the defendant is proven innocent then the MOL should be required to reimburse the association, individual or company for irresponsible prosecution. If the defendant wishes to discuss a plea because they admit that their operation was less safe than it should have been, they should have an option to get the training and information that they need from the MOL as part of the condition for the reduced fine. This type of education resource should be readily available from the MOL to businesses, volunteer groups or anyone that is in the position of an employer. If a safe workplace is what is wanted by the MOL then safe work practice should be taught in every school, training program and business class so that both employees and employers can work together more effectively.

Employers will be less likely to hire new workers and expand their operations when government regulation and practice are so complex and difficult to navigate. The willingness to outsource productions where policies are less restrictive is understandable when the requirements serve little to no benefit towards employee safety. The presence of a certificate does not ensure that a worker will not make a mistake or overlook a procedure at some point. An office with a policy book does not guarantee that errors in judgment will not occur. Laws must respect realistic expectations of both employers and employees. Staff must use common sense while working and if they do not know how to do something properly, they should be required to ask. A company or group that has operated for years without incident should be given the benefit of the doubt when an accident occurs as it is likely an isolated case compared to a business with a history of poor safety practices.

The Ontario government must take action to stimulate an enviroment where employers can grow their business and hire staff without unnecessary risk. If they do not, workers will soon find themselves without a paycheck as the benefit for a company to hire them will simply not exist. This scenario will affect every aspect of the economy including real estate and the rental industry. Jobs that pay healthy wages will only exist when a company can turn a profit as a result of worker contribution. A business should be able to invest in innovation, skills training & product development instead of trying to defend themselves against allegations that they failed to teach someone how to use a ladder. Workers need to take responsibility for their actions in the same manner that an employer must provide them with the right tools and equipment to work safely. Government should spend a bit more time delivering relevant information in schools and a little less time prosecuting volunteers for not knowing about the need for a policy book.

To create employment opportunities we must allow employers the opportunity to function, adapt and grow without restrictions and useless regulations.