Empowering public health inspectors to enforce regulations

Minor offences

In the enforcement of minor offences, PHIs are, in some ways, incapacitated because they do not have the ability to issue set fines in the form of POA Part I, Commencement of Proceedings By Certificate of Offence (ticket), which are available for other regulations. Ticketing is a quick and easy way to issue a pre-set fine for a specified section of a regulation. The benefit of ticketing is it does not involve complicated, time-consuming processes. Although PHIs always have the option of compelling an offender to court by issuing a POA Part III, Summons, this option is not always exercised for minor offences because of its more involved processes, but more importantly, the outcome often does not justify the effort. As a result, reoccurring minor violations of swimming pool and hot tub regulations often remain unenforced.

Major offences

With major offences, where the risk of a critical injury or a fatality is real, repeat infractions are addressed in two ways. For offences posing an immediate danger to the health and safety of bathers, PHIs invariably use HPPA section 13 closure orders to effectively remove people from immediate danger, thus preventing exposure to any potential health hazards. Aquatic facility owners/operators who have been served with such closure orders must immediately remove bathers from the swimming pool/hot tub area and close the facility immediately. The facility must remain closed until the health hazard/potential health hazard has been removed or rendered ineffective and danger to bathers is averted.

Further, PHIs are required to re-inspect the facility to ensure compliance with the regulation and ensure the condition(s), which resulted in the closure order, have been corrected. Unfortunately, closures do not always result in ongoing compliance and there are recurrent violations. To change the behaviour of the aquatic facility owner/operator, and to prevent major violations from recurring, enforcement action should ideally be the next step. This involves issuing the offender a summons under the provisions of POA Part III for the violation of the regulation, which requires them to appear in provincial court.

PHIs have two options when issuing a charge under POA Part III. They may either issue a charge for a specific section of the regulation or a more general charge for failure to comply with the regulation. In most cases, PHIs use the former option and issue a charge specific to the section of the regulation. Although charges for the specific section of the regulation do result in convictions, they often do not result in the intended behaviour change. This is primarily because courts consider each conviction independently of other similar, but not identical to previous convictions. This effectively prevents prosecutors from using previous convictions to request heavier penalties at the time of sentencing, resulting in the courts issuing much lower fines.

Often, a low fine is regarded by facility owners/operators as a cost of doing business and, therefore, does not change their behaviour with respect to regulation compliance. For each subsequent major health hazard the closure order averts the danger and the low fines negate further court action by PHIs. This may explain why there is minimal enforcement of major offences of public swimming pool and hot tub regulations in Ontario.

Enforcement strategies

The aim of any enforcement action is to encourage a change in the offender’s behaviour to achieve compliance with the law. There are enforcement strategies available to Ontario health units that can be used to resolve the enforcement obstacles PHIs encounter. These strategies can achieve the ultimate goal of enforcement action by changing the behaviour of public swimming pool and hot tub owners/operators such that they take the corrective actions necessary to meet the regulations to protect public health.