Who is a supervisor under the OHSA?
A “supervisor” is defined under the Occupational Health and Safety Act (“the OHSA” or “the Act”) as “a person who has charge of a workplace or authority over a worker.” In some circumstances, it may not be clear if an employee would be considered a supervisor. In those circumstances, one must turn to the courts to see how the term has been defined.
The Court in Ontario (Ministry of Labour) v. Bartram, 2009 ONCJ 29 (CanLII) [“Bartram”] was tasked with determining whether a Senior Manager for a “large, complex, multi-layered corporation” (i.e., the Toronto Transit Commission) could be considered a “supervisor” under the OHSA.
Who could be considered a supervisor?
The Court in Bartram cited the following cases which concluded various employees were considered to be a “supervisor” under the OHSA:
R. v. Eric Walters, unreported October 28, 2004, Ont. S. C., was cited as the authority to conclude that a Lead Hand for a parks grass-cutting crew is a “supervisor” within the definition of the Act.
R. v. Adomako [2002] OJ No 3050 was cited as authority for the conclusion that the active President of a very small company was a “supervisor” under the Act.
R. v. Jetters Roofing and Wall Cladding Inc. and Roger Blouse, [2000] OJ No. 5734 was cited as authority for the conclusion that a foreman supervisor of a construction site was a “supervisor” under the Act.
The Court relied on the three above mentioned cases for the following conclusion: “Whether the person in question thought he was a supervisor or was given the title of supervisor is of no import.” Further, the Court relied on R v. Eric Walters to conclude that “a supervisor must be someone who has hands-on authority.”
The Test
The Court in Bartram considered an “objective test based on the actual powers and responsibilities” of the individual.
The jurisprudence indicates that there are indicia of supervision which are examples of what is meant by “authority over workers” or “charge of a workplace.” These include the authority to hire and fire, exercise discipline, promote workers, decide the makeup of work crews, schedule work, deal with employee complaints, grant employee leaves, determine how individuals are paid, discuss safety issues with workers, control over equipment, ability to acquire or rent equipment, control over a plant or job site.”
Statutory Interpretation
The Court relied on R. v. Ellis-Don Ltd. (C.A.), 1990 CanLII 6968 (ON CA), R. v. Timminco Ltd., 2001 CanLII 3494 (ON CA) and R. v. the Corporation of the City of Hamilton (2002) 58 O.R. (2n) 37, as authority to conclude that the OHSA is a “public welfare statute that [should] be interpreted in a manner consistent with its broad purpose of promoting and maintaining a reasonable level of protection for the health and safety of workers in and about their workplace.”
Conclusion
The Court concluded that although Mr. Bartram was “the head of the hierarchy and delegated much of his power and authority to other beneath him, he had the ultimate responsibility for charge of the workplace and authority over the workers.” Despite the fact that Mr. Bartram did not give his employees direct orders, he was still responsible for those who did give directions. Further, he was ultimately responsible for “the nature of the equipment and the condition of the workplace.”
The Court determined that on a plain reading of the statute, Mr. Bartram fits within the definition of “supervisor” in the OHSA. The Court relied on Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 to conclude that “A narrow and technical reading otherwise would lead to [….] an “absurd” result, one that was “unreasonable, inequitable, illogical, incompatible with the object of the legislative enactment which (would) defeat the purpose of the statute or render some aspect of it pointless or futile.”