Significant Amendments to the Occupational Health and Safety Act
On April 11, 2022, Bill 88, the Working for Workers Act, 2022 (the “Act”) – which is distinct from Bill 27, the Working for Workers Act, 2021 – received Royal Assent. As a result of the Act, amendments have been made to the Occupational Health and Safety Act (the “OHSA”) and the Employment Standards Act, 2000 (the “ESA”); as well, new legislation has been created for digital workers entitled the Digital Platform Workers’ Rights Act, 2022 (“DPWRA”), amongst other changes.
This article will focus solely on the OHSA amendments.
The Act has made significant changes to the OHSA, including increased penalties for directors, officers and individuals; modifications to the sentencing provisions; and, an increase in the limitation period, amongst other amendments. These changes will come into force on July 1, 2022.
Increased Maximum Fines for OHSA Violations
A new penalty is created for directors or officers (“senior officials”) of a corporation who do not take reasonable care to ensure that the corporation complies with the OHSA. On conviction, the Act raises maximum fines under the OHSA from $100,000 to $1.5 million for senior officials of the corporation, or imprisonment for a term of not more than 12 months, or both.
The Act also increases the maximum monetary penalty for all other individuals from $100,000 to $500,000. In addition to these increased maximums, individuals could also face up to 12 months in prison, or both.
Legislated Aggravated Sentencing Factors
The Act amends the sentencing provision of the OHSA by inserting “aggravating factors” for consideration when a court is determining penalties. The amendment includes only aggravating factors – those that serve to increase the penalty – and not mitigating factors which are circumstances that favour a lesser penalty. The aggravating factors are as follows:
- The offence resulted in the death, serious injury or illness of one or more workers.
- The defendant committed the offence recklessly.
- The defendant disregarded an order of an inspector.
- The defendant was previously convicted of an offence under the OHSA or another Act.
- The defendant has a record of prior non-compliance with the OHSA or the Regulations.
- The defendant lacks remorse.
- There is an element of moral blameworthiness to the defendant’s conduct.
- In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.
- After the commission of the offence, the defendant,
- attempted to conceal the commission of the offence from the ministry or other public authorities, or
- failed to co-operate with the ministry or other public authorities.
- Any other circumstance that is prescribed as an aggravating factor.
Extension of Limitation Period
The limitation period for instituting a prosecution will be extended from one year to two years. Two-year limitation periods in Occupational Health and Safety legislation are not uncommon, as other provinces already provide a two-year period for laying charges.
Words of Caution
It is important for organizations to ensure that senior officials have knowledge of the corporation’s most fundamental health and safety obligations. Organizations should also verify that their senior officials are familiar with section 32 of the OHSA, which requires a director and/or officer to take all reasonable care to make sure the corporation complies with the OHSA, its regulations, and any orders of Ministry inspectors.
A common area that employers continually fail to comply with under the OHSA is with respect to conducting a flawed or “amateurish” internal workplace harassment investigation. As a reminder, section 32 of the OHSA creates a legal obligation for employers to protect workers from workplace harassment. Mismanaging an investigation, or failing to conduct one at all, can have a variety of adverse effects. The Company could experience legal exposures including orders/charges under the OHSA, an application under the Human Rights Code, or a civil action.
After a serious workplace incident, employers should consider hiring an experienced, knowledgeable, and competent external workplace investigator. This may generate less scrutiny and legal challenge of the investigation process by all parties involved, including any overseeing bodies, such as the Ministry of Labour.
The Bottom Line
With the above-mentioned amendments to the OHSA, there will be an increased level of scrutiny by the Ministry of Labour for failing to comply with the Act. It is strongly recommend that all employers implement a meaningful review of their health and safety policies, in addition to any complaints procedure, should a serious workplace incident occur.
At Hyde HR Law, we offer expert services to review, revise, and even draft health and safety policies and programs. Please do not hesitate to contact us.