Previously, Clearing the Air examined the difference between an MOE inspection and an investigation. In her latest entry, Paula Lombardi provides details on what you should do if you find yourself the subject of an investigation.
If you are being investigated or inspected, having a clear operating procedure in circumstances when the MOE shows up at the premises will make the process smoother and ensure minimal problems. It is important for you to have on hand a contact list for your employees, managers and supervisors so that you can easily identify the individuals to call in the event the MOE shows up at the premises. This list should include legal counsel and the management team and also set out all relevant operating policies and procedures.
If the MOE has a warrant, you are under investigation and should insist on time to call your lawyer prior to proceeding with the search. Review the warrant and make sure that it (1) includes a basic description of the offence; (2) the items to be searched are listed; and (3) it states the location of the search. You should understand the parameters of the search. While the MOE is on-site it is import to make sure that you take thorough and detailed notes.
If the MOE shows up and does not have a warrant and they are not from the investigative branch ask them to identify who they are and their role. It is a good idea to ask the MOE the purpose of their visit so you can determine whether the predominant purpose of their inquiry is to determine penal liability. Again, ask for time to call your lawyer – it may be possible to request that their meeting be postponed until you have an opportunity to seek legal advice. Make sure to be polite and remain courteous at all times so you are not viewed as obstructing the investigation or inspection.
When dealing with an officer, be assertive but not aggressive. Be polite but it is important that you do not give them ad hoc access to the premises. Be prepared to ask them the purpose of the visit and find out if it is an inspection or an investigation. If it is an investigation, we recommend that they be taken to a meeting room while you have an opportunity and call your legal counsel and discuss next steps. Also, ask to see a warrant and find out as much detail as you can; what is the offence? What is being investigated? Is it about specific employees or the company as a whole? What is the location and nature of the alleged offence?
We recommend that you have a Standard Operating Procedure in place; identify the management team and how to contact them; train all staff on relevant policies and procedures; and continuously revisit and update your procedures. Have a designated person to greet the inspector who is trained to deal with the situation; train security and reception to require them to sign-in, request business cards and badge numbers, and call relevant personnel; remain calm; and be courteous.
Make sure that you take notes and enforce your regular safety protocols. Make a list of any documentation, photographs, samples or other material taken by the MOE. If there is a request for something outside of normal operating conditions and procedures, cooperate (to avoid obstruction allegations) but state your objection and again, it is important that you require officers to conform with all normal health and safety procedures.
Before the officers leave, ask them to sign your notes made while they were on the premises. We recommend that you refuse to sign any statements or other documentation that the officers draft while at the site; you should you be provided an opportunity to review these notes.
Note that any comments to officers can be used in support of charges or orders. This is why it is important to remember to be polite to officers but again do not confuse friendliness as being helpful, an officer can often to get you to volunteer information that you may not want to disclose.
When dealing with the MOE there are two separate categories of individuals, both of whom are provincial officers: (1) compliance officers, and (2) Investigations Branch officers.
The role of a compliance officer is to ensure “compliance” with environmental laws. These officers have broad powers and can conduct random spot checks of industrial sites to ensure compliance with the applicable standards. Investigative officers are from the MOE Investigations and Enforcement Branch and are responsible for all aspects of environmental enforcement within the MOE. These officers are focused on the collection of evidence for prosecution purposes and therefore their power is more limited as they have to take into account constitutional rights.
When the Ministry of Labour shows up it becomes more difficult to distinguish between whether or not they are conducting an inspection or investigation. MOL inspectors are authorized under the Occupational Health and Safety Act (“OHSA”) to conduct both workplace inspections and workplace investigations. This definitely makes the situation more complicated as it is difficult to know when the MOL inspection has stopped and when an investigation has started.
This is by no means an easy issue and it is important to be aware of your rights when you are being subject to an investigation or inspection by either the MOE or the MOL. Whatever the circumstances, good preparation will always help. Good organization of your records and having standard operating procedures for the event of an inspection or investigation is critical.