Fines increased to 15 times the current maximum penalty, amendments a 'significant' wake-up call
The Ontario government has introduced new legislative changes that, if passed, could have a significant impact on how the province delivers health and safety in the workplace.
The Working for Workers Act, 2022, contains amendments to the Occupational Health and Safety Act (OHSA) that could shake up the sector. John Illingworth, Partner, Mathews Dinsdale & Clark LLP says that it could impact occupational health and safety in five important ways.
First, the Act raises the maximum fines for individuals – including officers and directors – “very significantly,” says Illingworth. These would be the highest individual penalties for OHSA violations in Canada.
He explains that for penalty purposes, directors and officers will be separated from other individuals (supervisors, workers, engineers, etc.). Officers and directors will be subject to a maximum fine of $1,500,000, which is the same as a corporation and 15 times the current maximum penalty of $100,000. The maximum fine for other individuals will be raised to $500,000, a five-fold increase over the current maximum.
Secondly, the Act provides for the Court to make additional orders on sentencing pursuant to an anticipated Regulation. “What might be prescribed is unknown at this time, but there are several possibilities, such as probation, re-training, or donations to industry-related safety organizations,” says Illingworth.
Third, says Illingworth, “the Act codifies aggravating factors to be considered on sentencing". Aggravating factors support the need for “specific deterrence and a higher penalty,” he adds. The new Act will codify the following aggravating factors, which serve to increase the penalty and provides for additional, unidentified aggravating factors to be created through regulations:
1. The offence resulted in the death, serious injury or illness of one or more workers.
2. The defendant committed the offence recklessly.
3. The defendant disregarded an order of an inspector.
4. The defendant was previously convicted of an offence under this or another Act.
5. The defendant has a record of prior non-compliance with this Act or the regulations.
6. The defendant lacks remorse.
7. There is an element of moral blameworthiness to the defendant’s conduct.
8. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.
9. After the commission of the offence, the defendant, i. attempted to conceal the commission of the offence from the Ministry or other public authorities, or ii. failed to co-operate with the Ministry or other public authorities.
Many of these factors have been developed and applied by the courts over 40 years of case law, says Illingworth. “However, the Act's expressed inclusion of aggravating factors, together with the conspicuous absence of mitigation factors, may change the way in which the two are balanced in sentencing when arriving at an appropriate penalty.”
Fourthly, the province’s Ministry of Labour, Training and Skills Development will now have a two-year limitation period in which to lay charges.
Lastly, the Act “imposes new requirements on employers to have naloxone kits and related training where there may be a risk of a worker having an opioid overdose at work.”
Illingworth says that these changes will affect every individual in the workplace, “from the directors and officers to the newest worker, as well as supervisors, lead hands with workplace authority, sole proprietors, independent operators, engineers and architects.”
Specifically, he says that for frontline supervisors and possibly lead hands, this is of particular concern as individuals who have “charge of a workplace or authority over workers” (which is how a “supervisor” is defined under the OHSA) and real authority over how work is performed on site. Illingworth explains that these individuals are frequently charged and fined under the OSHA and now their potential fines have increased five-fold.
He says that the amendments are also a “significant” wake-up call for directors, officers and senior management. Directors and officers are not clearly defined under the OSHA so a broad range of officers, from those on site to those in remote corporate offices, can be charged – and these potential fines have now been increased 15-fold.
The “Westray Bill” or Bill C-45 amendments to the Criminal Code were in theory meant to hold directors and officers more accountable for workplace safety. However, it has not been applied as rigorously as some might have anticipated. “Exposing directors and officers to the same maximum fines as corporations is a strong reminder that directing minds must be vigilant in ensuring that the organization is taking all reasonable precautions for the protection of its workers,” says Illingworth.