OHS & Workers’ Compensation Advisor

On April 7, 2022, the Government of Ontario passed Bill 88, the Working for Workers Act, 2022 (the “Bill”), which, among other things, contains various amendments to the Occupational Health and Safety Act (the “OHSA”).  The amendments will make significant changes to the OHSA including substantially increased penalties for directors, officers and individuals, legislated sentencing factors, the potential for additional court orders as part of sentencing, and a doubling of the limitation period.  The Bill also introduces obligations for certain employers to maintain naloxone kits and train their staff on how to use them.

The new sentencing provisions and limitation period take effect on the later of July 1, 2022, or the date the Bill receives Royal Assent.  We anticipate Royal Assent will occur before July 1, 2022, meaning these changes are likely to come into force on Canada Day.  The new obligations in respect of naloxone kits take effect on a date to be named by the Lieutenant Governor by proclamation.

Increased Maximum Fines for Individuals

The Bill provides for significantly increased penalties for individuals.  Directors and officers of corporations, who, like all individuals, are currently subject to a maximum fine of $100,000 will face a maximum fine of fifteen times that amount, $1,500,000, which is the same as the maximum penalty that can be imposed on a corporation.  The Bill also increases the maximum monetary penalty for all other individuals to $500,000 – a five-fold increase from the current maximum.  These maximums are per offence meaning individuals charged under the OHSA could face a maximum monetary penalty that in the millions or multiple millions of dollars.  In addition to these substantially increased maximums, individuals could also face up to 12 months in jail. 

What is not clear is why the government believes increased penalties are necessary.  Indeed, individual monetary penalties were increased dramatically in mid-December 2017.  It was then that the maximum for all individuals was increased to the current $100,000 – which represented a quadrupling of the previous maximum of $25,000.  At that time, individual penalties had not increased since 1980.  An increase after nearly 40 years could be justified on the basis that $25,000 in 1980 is not the same as $25,000 in 2017.  However, the new increase is coming barely 4 years later and the increase is tremendous.  The previous increase added $75,000 to the maximum individual penalty.  This increase is $400,000 or $1,400,000 depending on the individual’s role.

The experience since the 2017 increase does not indicate that a maximum fine of $100,000 has been inadequate.  In fact, the highest monetary penalty ever imposed on an individual under the OHSA has been $90,000.  That penalty was imposed in 2012 – when the maximum fine was $25,000 per charge – on a director of Metron Construction Corp. after he pleaded guilty to four offences relating to the death of four workers and the serious injury of a fifth worker.  Moreover, since the 2017 increase, the highest fine imposed on an individual has been $25,000.  That penalty was meted out in November 2020 after the individual, who was the employer, pleaded guilty to an offence arising after a worker died after falling from a roof while trying to access a ladder.  We do not know if this penalty was the result of a joint submission[1] or if it was imposed after hearing competing submissions from the Crown and defendant.  However it may have come about, a court was satisfied that a penalty amounting to 25 percent of the maximum was appropriate in the circumstances.

It may be that the government is responding to a February 4, 2022, recommendation made by the jury in the Coroner’s Inquest into the Metron Construction accident.  One of the recommendations was for the Ministry of Labour, Training and Skills Development (“Ministry”) to “Consider additional fines/penalties for supervisors who are violating the regulations (importance of leading by example with workers)”.  Supervisors, along with any individual (which could include an architect, engineer, worker, or someone acting as an employer), now all face the potential of substantially increased penalties.

It is not clear that individuals convicted of offences occurring after the maximum penalty is increased (again, we anticipate this will be July 1, 2022), will face a stark and immediate increase in fines.  After the 2017 amendment, we did not see a dramatic increase in the sentences sought by Crown prosecutors or imposed by the courts.  However, that could change in light of recent court decisions which may be used to support Crown prosecutors seeking increased penalties. Further, as discussed below, it also appears that the government’s intention is for fines to increase.

a)  What Does This Mean for Offences Occurring Before the Penalties Increased?

Those who have already been charged, or are charged with offences that are alleged to have been committed prior to July 1, 2022 or the date the increased penalties take effect, are not subject to the increased penalties.  Indeed, section 11(i) of the Canadian Charter of Rights and Freedoms specifically addresses how penalties will be applied.  It sets out that “if the punishment for the offence has been varied between the time of commission and the time of sentencing [the defendant is entitled] to the benefit of the lesser punishment”.  As such, in order for the new maximum penalties to apply, the offence cannot have been committed before the increase takes effect.

b)  What Should Directors and Officers do?

We suggest that senior management, officers and directors of Ontario organizations seriously consider taking the following steps in an effort to incorporate a personal “due diligence” regime into their daily activities.  These need not be time consuming steps.  A few straightforward steps and small changes in operational behaviour can be significant.  These include the following:   

1. Make sure senior officials, officers and directors have knowledge of the corporation’s most fundamental health and safety obligations.  Do officers and directors have a copy of the current OHSA?  Have they ever seen section 32 of the OHSA?[2]  Do they know and understand their OHS responsibilities as officer or director?  Do they know the key regulatory requirements that apply at company operations?  An appropriate training course in obligations, and documentation of same, is a key first step.  A safety official can readily prepare a summary of key regulatory obligations for senior management review.  If senior management, officers and directors have never received any education in, and have not reviewed the most fundamental OHS–related provisions, it will likely be impossible for them to show that they took all reasonable care to ensure that the corporation complied with the OHSA;
2. Ensure that, once provisions of the OHSA and regulations for work are known, there is meaningful review of corporate health and safety policies and programs.   Has there been any review by the Board of Directors, in which they enquire whether the program meets due diligence requirements?  Has there been any meeting to discuss whether programs meet regulatory requirements? Place the task of reviewing the health and safety issues on officers’ and directors’ meeting agendas.  Place this issue on management or production meeting agendas with some frequency.  Aside from the question of whether a health and safety policy is signed by a senior manager and posted, our experience is that senior officials rarely have engaged in the necessary degree of meaningful discussion of whether the program includes provisions for safe work, protective devices, and procedures which meet requirements of the regulations under the OHSA;
3. Establish a system for senior officials, officers and directors to become informed of significant or critical health and safety developments or problems at the workplace.  Keeping abreast of ongoing health and safety issues is a crucial part of “taking all reasonable care” to ensure that the corporation complies with the OHSA.  This does not mean that officers and directors have to become “safety officers” or be on the shop floor day to day.  Some system must, however, exist for officers and directors to review significant OHS developments or decisions, new legislative requirements and new safety standards for the industry, in order to assess, act on and give directives respecting these health and safety issues.  Significant OHS developments or decisions could be summarized by safety officials, and provided at regular intervals to create a documented record for senior managers, officers and directors to establish that they are engaged in regular review of OHS issues. Matters for summary reports could include: new policies or procedures; safety aspects of new equipment acquired; systems for corporate training; systems for supervisory monitoring and sufficiency of monitoring; worker OHS complaints; work refusals or “stop work” directives; joint health and safety committee recommendations; and any and all other relevant matters. Any high risk or critical concerns escalating to work refusals or stoppages for safety, joint health and safety committee recommendations, or which result in near misses or health and safety violations should be reported promptly to officers and the Board of Directors;
4. Ensure that officers and directors and senior officials follow up on health and safety problems and compliance issues which come to their attention.  Lack of follow-up once a problem with the functioning of the health and safety system or on health and safety developments or decisions has been identified, will destroy any argument available to officers or directors that they “took all reasonable care” to ensure that the corporation complies.  Notes of specific inquiries into health and safety issues and problems should be recorded by the officer or board of directors.  Notes of directions to comply with Ministry orders and recommendations should be made. Notes should be made of all directions to remedy any concerns escalating to critical matters posing serious potential risk, such as work refusals, joint health and safety committee recommendations, or matters resulting in near misses or health and safety violations.

c)  How Important is Documentation?

The increased individual penalties could signify a heightened focus on individual liability by Crown prosecutors.  However, even if we do not see an immediate, dramatic shift in the approach of prosecutors, we do think that the potential for tremendously high penalties adds further importance to documenting the steps taken to ensure compliance with the OHSA. 

The documenting of such positive steps can, in addition to those mentioned above, include taking detailed personal notes, ensuring that existing company forms are completed in full and completely record the action(s) or measure(s) taken, and that subordinates are doing what they are to be doing and documenting those activities.  For example, if safety meetings or tailgate talks are being held by lower level supervisors, ensuring there is a record of the meeting or discussion kept by that person would assist not only the person delivering the talk but also their superiors who may rely on it as part of the system they oversaw to ensure compliance.

The reality is that the defendant has the obligation of demonstrating due diligence.  Workplace leadership should, therefore, develop the habit of ensuring the documentation of positive steps.  Failing to do so, or failing to create detailed documentation that is useful, seriously hinders the ability to demonstrate that all reasonable care was taken.  Memories fade and the importance of a particular step is probably not patent at the time it is taken.  It is generally after charges have been laid for a workplace event that individual steps take on heightened, if not critical, importance and any difficulty or inability to demonstrate the steps taken to ensure compliance increases the likelihood of a conviction and a higher penalty.

Legislated Aggravated Sentencing Factors

At the same time as increasing  fines that can be imposed on individuals, the Bill amends the sentencing provisions of the OHSA by inserting aggravating factors for consideration when a court is determining penalties.  These aggravating factors would apply to both corporate and individual defendants alike.  We note that 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 set out below:

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,
   • a) attempted to conceal the commission of the offence from the Ministry or other public authorities, or
   • b) failed to co-operate with the Ministry or other public authorities.
10. Any other circumstance that is prescribed as an aggravating factor.

Crown prosecutors will determine how these factors are used in any case.  However, given the statements of the government, there is cause for concern.  While speaking about the Bill during Third Reading on April 6, 2022, a representative of the current government said: “The greater the number of aggravating factors that are put before the court, the stronger the case that can be made for a higher fine”.  It appears, therefore, that the government believes that penalties under the OHSA need to increase. 

Candidly, many of the listed factors are already considered when determining a penalty under the OHSA – whether against an individual or a corporation.  Defendants whose contraventions resulted in a worker suffering a serious injury or death and those who have prior convictions do receive more serious penalties than defendants in cases without these circumstances.  However, there are some factors that are not usually before the court and, as counsel advising employers and management, give rise to concern. 

a)  A Record of Prior Non-Compliance with the OHSA or Regulations

First, factor 5 provides that a record of non-compliance with the OHSA or its regulations is an aggravating factor.  We do not read this as a reference to having previously been convicted of an offence under the OHSA because that is addressed in factor 4.   As such, this must refer to having received previous orders from the Ministry.  While a history of prior orders has been considered by the courts in Ontario as a relevant sentencing factor, they tend to be used if the prior orders relate to the same issue as a subsequent charge or if a defendant has been charged after receiving numerous orders.  However, the Bill does not focus on such circumstances.  Rather, it says that a record of non-compliance is an aggravating factor which may prompt Crown prosecutors to place such information before sentencing courts much more frequently – if not routinely. 

We also note that there is no time limit on the record of non-compliance that is relevant.  Arguably, this means that a defendant’s entire regulatory history could be put forward by the Crown when seeking a harsher sentence.  That said, the Bill does not prescribe how much weight is to be given to the record of non-compliance which means it is open to the court to determine how aggravating the record actually is.  We anticipate the courts will look at contextual factors in considering a defendant’s prior non-compliance.  Factors such as the number of prior orders, the similarity between the prior non-compliance and the offence(s) for which the defendant has been convicted, and how long ago the non-compliance took place may be taken into account.  The fewer orders that have been issued, the longer ago they were, and the less similar they are to the current offence should mean that the record of non-compliance is less aggravating. 

Should Crown prosecutors start to place compliance histories before courts more frequently, employers and management may wish to consider a much more strategic approach to orders than may have previously been employed.  It is not uncommon for employers to receive an order and, notwithstanding disagreement with the order, determine that it is simply easier to comply than challenge the order.  The costs associated with compliance may not be significant and compliance may be the most expeditious way to put the issue to rest.  A reasonable approach in many such instances.  However, that approach may have to be reconsidered if the number and nature of prior orders will be used as part of a future sentencing proceeding.  Employers may need to give serious consideration to appealing all orders believed to be legally or factually incorrect so that the record that may be used in a future proceeding is as minimal as possible.

b)  The Defendant Lacks Remorse

The second factor that we wish to note is one that seeks to assess whether a defendant has the expected level of regret or guilt about an offence.  While a demonstration of remorse (such as an early guilty plea) is well-accepted mitigating factor, the absence of remorse is more difficult to assess. Courts apply a well-established principle that an unsuccessful defendant “should not be penalized for exercising its right to a trial, by equating the exercise of that right to an absence of remorse.” Accordingly, this would suggest that prosecutors will have to lead of evidence of conduct or behaviour beyond not pleading guilty. As of right now, however, the amendments provide no clarity as to what might demonstrate a lack of remorse.

c)  Failing to Cooperate with the Ministry or Other Public Authorities

The third factor of concern to us is factor 9(b) which deals with post-contravention cooperation.  It is not at all clear what kind of behaviour or conduct would demonstrate a failure to cooperate with the Ministry or other public authorities (which, in itself, suggests a more significant penalty could be imposed if there was cooperation with the Ministry but not another authority).  One can anticipate that the Ministry and the Crown will have a different perspective than employers and management about the conduct amounting to being uncooperative.

Our concern is the implications of this factor on the assertion of legal rights and the implementation of strategic responses following a serious workplace event.  After such an event has occurred, many employers conduct their own investigation and try to control the flow of information about it – to the extent legally permissible – while the Ministry investigation is ongoing.  Depending on the circumstances, this may mean an organization only provides the Ministry with the information it requires to be produced and nothing more. This allows the organization to determine when and how such information will be used.

Will such a strategic response now be seen as uncooperative?  Cases will likely have to be argued to determine the meaning of this provision but the addition of this factor to a list of those that should lead to increased penalties does raise a concern that strategic and legal behaviour could be used against an organization or individuals if they are convicted under the OHSA.

We do note that the OHSA does not actually contain an obligation or duty to cooperate with the Ministry.  Rather, the obligations and duties are to provide assistance to facilitate an inspection, investigation, or execution of a search warrant, not to provide knowingly false information, and not to obstruct.  The legal obligations are, therefore, to be truthful, allow an inspector to do his or her inspection without interference, and to provide such assistance as may be necessary for the inspector to carry out their statutory duties.  It is worrisome if a potentially harsher sentence is used to require or motivate an organization and its leadership to do more than that.

Prescribed Orders

The Bill also amends the OHSA by providing that anyone convicted of an offence (meaning both people and corporations) may also be subject to a “prescribed order” in addition to any fine or jail term imposed.  Exactly what a “prescribed order” could be is not explained.  Prescribed orders will be created by regulation[3] and may authorize a court to impose additional terms and conditions on a defendant as part of their sentence.  It is not clear whether this change is designed to introduce creative sentences in Ontario because the “prescribed order” would be imposed in addition to, rather than instead or in lieu of, any fine or jail term.  As such, it does not appear that the “prescribed order” could be imposed without a fine or jail term.  Providing for creative sentences, which, frequently, means lower fines, is inconsistent with the substantially increased penalties and aggravating sentencing factors incorporated into the OHSA by the Bill.  It is also not consistent with government comments which herald the OHSA changes by stating: “We are also increasing Ontario’s occupational health and safety fines to be the highest in Canada for businesses that fail to keep workers safe”.

Nova Scotia’s Occupational Health and Safety Act could provide some insight into what the government may be considering by “prescribed orders”.  Section 75 of that statute provides a court with the power to impose the following orders in addition to any sentence imposed:

1. directing the offender to publish, in the manner prescribed, the facts relating to the offence;
2. directing the offender to pay to the Minister an amount for the purpose of occupational health and safety initiatives including, but not limited to, public education;
3. on application by the Director made within three years after the date of conviction, directing the offender to submit to the Director such information with respect to the activities of the offender as the court considers appropriate and just in the circumstances;
4. directing the offender to perform community service, subject to such reasonable conditions as may be imposed in the order;
5. directing the offender to provide such bond or pay such amount of money into court as will ensure compliance with an order made pursuant to this Section;
6. requiring the offender to comply with such other reasonable conditions as the court considers appropriate and just in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing other offences.

Nothing is certain until the government creates the regulation detailing the “prescribed orders”.  We will have to see if the orders the government creates are meant to provide additional sentencing options that open the door to creative outcomes or if they are meant as additional sanctions to be imposed on defendants.

Extension of Limitation Period

In what could prove a further troubling amendment, the Bill lengthens the limitation period under the OHSA.  It is currently one year from the contravention or from the date the contravention becomes known to an inspector.  It will now be a two year limitation period.

Two year limitation periods in OHS legislation are not uncommon as there are several jurisdictions that provide a 24-month period for the laying of charges.  This includes Alberta, Nova Scotia, and Saskatchewan.  Why, then, do we describe the potential extension as troubling?  We do because our experience is that the Ministry already takes the vast majority of the one year period in many, if not most, cases to bring charges. 

Further, if given more time to bring charges, the government tends to take it.  That has been demonstrated by the timing of charges arising during the COVID-19 pandemic.  Limitation periods were suspended for approximately six months between mid-March and mid-September of 2020.  For organizations under investigation when limitation periods were suspended or those who came under investigation during that time, the limitation period stopped running or did not start to run until limitation periods resumed on September 14, 2020.  It appears that the government worked to the extended limitation period and brought charges just before the deadline in many cases.  Based on this experience, our concern is that a two year limitation period could mean that charges are not commenced until nearly 24 months after the events precipitating them.

a)  How Should Employers and Management Respond?

We already recommend that, after a serious workplace incident, employers conduct their own robust investigation so that: (1) information can be collected while it is fresh; (2) details that are positive for the organization can be investigated (because the Ministry doesn’t usually gather much of such information); and (3) the organization can gather information while witnesses are available and before their memories have faded.  Conducting a robust internal investigation takes on a heightened importance if the time between a serious workplace event and the commencement of charges will become even longer.

b)  What Does This Mean for Matters Currently Under Investigation?

Above, we noted that those alleged to have committed OHSA offences before what we assume will be July 1, 2022, are not subject to the increased penalties.  However, the analysis is not necessarily the same when it comes to the extension of the limitation period.  Whether a matter is subject to the new two-year limitation period will depend on whether the former one-year limitation period has expired.  If it has, the amendment of the limitation period cannot revive it.  However, if the matter remains under investigation with a limitation period that has not yet expired, the new limitation period will apply. 

Naloxone Kits

This was the headline amendment in the initial press release about changes to the OHSA.  Employers that become aware, or ought reasonably to be aware, of a risk of a workplace opioid overdose by a worker, or in prescribed circumstances, is required to provide and maintain a naloxone kit in the workplace and ensure that, at any time workers are in the workplace, there is a trained worker, working in the vicinity of the kit, who has charge of the kit.

Clearly, this change is meant to address the opioid crisis and reduce deaths from overdoses.  Based on its statements in the Legislature, the government is imposing this obligation on employers in order to increase access to naloxone.  Again, during Third Reading on April 6, 2022, government representatives made the following statements during debate on the Bill:

As set out above and in previous statements, the government says the obligation to have naloxone kits will apply to certain “high-risk” workplaces.  It says this includes construction sites, bars and nightclubs.  We anticipate that the “prescribed circumstances” will obligate these workplaces to have naloxone kits but all employers should be mindful that a kit is required if they are aware of a risk of a workplace opioid overdose or if circumstances suggest a potential risk.

In addition to having the kit, the amendments require there to be a trained worker, working in the vicinity of the kit, who has charge of the kit. Training for the administration of naloxone requires a broader knowledge and awareness than simply how to use the kit. A worker will need training in first aid, identifying the symptoms of an opioid overdose, and responding to the potential of agitated or violent behaviour. Employers will also need to take responsibility for ensuring the kit is secured and not accessible to untrained workers.

Concluding Thoughts

The Bill introduces some profound changes to the OHSA as it now contains the highest penalties in Canada, legislated factors designed to increase penalties, and departs from the more than 40 year history of the statute by doubling the limitation period.  The impact of these changes remains to be seen but they are prosecution-friendly changes that increase the potential legal risks to workplace parties – particularly workplace leadership.  Employers, directors, officers and supervisors would be well-advised to respond to these changes by refocusing compliance measures and strategies, strategic responses to OHSA issues and incidents, and ensuring that steps taken to ensure safety in the workplace are well-documented. 

Any member of our national OHS and Workers’ Compensation practice group may be consulted on this or any other OHS matters.

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[1] Where the Crown and defendant have agreed to recommend a specific penalty to the court.  The recommendation is not binding on the court but courts are to give significant consideration to a joint submission and only deviate if the recommendation would bring the administration of justice into disrepute or otherwise be contrary to the public interest.

[2] Which obligates a director or officer to take all reasonable care to ensure the corporation complies with the OHSA, Regulations, and any orders of Ministry inspectors.

[3] Which are written by the government without going through the Legislature.