On November 27, 2024, the Ontario government introduced yet another amendment to Ontario’s OHS legislation, further increasing the potential for severe, if not crushing, corporate OHS penalties. Bill 229, the Working for Workers Six Act, 2024 (the “Bill”), introduced a number of potential changes to labour and employment legislative provisions, as we identified in our earlier In-A-Flash.

Among the changes proposed is an amendment to the penalty provisions of the Ontario Occupational Health and Safety Act (“OHSA”). That change would set a minimum $500,000 fine for any corporation convicted of a second or subsequent offence in which a worker was killed or seriously injured within a 2 year period.  This Advisor discusses the potential change, how it represents a very stark departure from the usual sentencing considerations, and what employers may need to do as a result.

Triggering the Minimum Corporate OHSA Fine

When it comes to attracting the application of the proposed new minimum sentence, the language of the pending amendment is concerning.  It reads: “for a second or subsequent offence that results in the death or serious injury of one or more workers in a two-year period, the minimum fine that may be imposed is $500,000”. 

First, it is concerning because the minimum fine will apply if a corporation is convicted of an offence arising from a “serious injury”.  The phrase “serious injury” is not defined in the Bill or the current OHSA.  It is not clear what kind of injury this is intended to address.  Readers may be familiar with the term “critical injury” in the Ontario OHSA and that it has a specific, legislated meaning.  “Serious injury” is a phrase that was introduced into the OHSA in 2022 amendments to the OHSA that introduced a list of aggravating factors to be considered during sentencing.  No case has been decided interpreting the meaning of “serious injury” but, because the phrase “critical injury” is not used, it must be assumed that a “serious injury” includes an injury different than “critical injuries”.  As such, we anticipate a prosecution position that a “serious injury” includes a “critical injury” but also includes other injuries.  Whatever position prosecutors may take, it is likely that cases will need to be decided by the courts to provide clarity about the meaning of “serious injury”.

The proposed amendment is also concerning because the $500,000 minimum is attracted only by the second or subsequent offence – not the first one.  It appears the first conviction could include any OHSA offence, however minor.  Therefore, if a corporation is convicted of an offence unrelated to any injury it will be subject to the $500,000 minimum fine if, within two years of that no injury conviction, an offence occurs involving death or serious injury.  As elaborated on below, it is difficult to find principle in such circumstances.

There may also be issues about when the first conviction must have happened to trigger exposure to the $500,000 minimum fine.  The $500,000 minimum is to come into force when the Bill receives Royal Assent.  Crown prosecutors may take a position that the first offence does not need to have occurred after Royal Assent.  If that is the position and if that position were to be supported by the courts, any corporation could be subject to the $500,000 minimum if convicted for a death or serious injury that occurred within two years of a previous conviction.  That could mean near immediate jeopardy for some organizations.

Unprincipled Penalties

The imposition of a mandatory minimum takes all discretion and context out of the sentencing process.  This is a substantial departure from how sentencing in an OHSA prosecution case currently works.

Sentencing corporations for violations of the Ontario OHSA is a contextual exercise in which various factors and principles are considered to arrive at an appropriate penalty.  In 1982, the Ontario Court of Appeal released its decision in R. v. Cotton Felts Ltd.  In Ontario, really across Canada, that decision has guided the sentencing of corporations for OHSA and other regulatory offences.  The decision set five criteria that were to be applied to arrive an appropriate penalty: the size of the company involved, the scope of its economic activity, the extent of actual or potential harm involved, the maximum fine available, and the enforcement of regulatory standards by deterrence. These factors provide for context.  They result in smaller organizations receiving lower fines than larger organizations in similar circumstances, and sentences for offences involving injury to a worker being higher than for cases that do not involve injury. The consistent application of these principles has generally prevented an OHS sentence that is likely to crush and bankrupt a small family-run or less profitable organization, for example, and permits more significant sentences for larger, more profitable organizations, where appropriate.

There are a number of other principled considerations or factors that are considered in addition to the Cotton Felts factors.  Those additional considerations include the moral blameworthiness of the defendant, parity (sentences should be similar to other sentences imposed on similar offenders for similar offences committed in similar circumstances), proportionality (meaning the sentence properly reflects both the gravity of the offence and the degree of responsibility of the offender), and restraint in sentencing.  Further, a prior conviction has always been an aggravating factor (a factor suggesting a higher fine should be imposed) on sentence.  The more recent the prior conviction, the more aggravating it will be as a consideration as to relation to an appropriate sentence.

The proposed amendment jettisons these factors and considerations.  It removes the court’s discretion when imposing sentence along with any discretion or flexibility that might be brought to the process by the prosecution and defence.  It is not clear why the Ontario government believes the $500,000 minimum is necessary.  The government tripled the maximum fine that could be imposed on a corporation in 2017, added aggravating sentencing factors in 2022, and increased the maximum corporate OHSA fine to $2,000,000 in 2023.  Crown prosecutors are seeking substantially higher penalties from organizations charged under the OHSA.  As such, the impact of the sentencing changes made in the last couple of years is only starting to be felt and the government could not reasonably have determined them to be inadequate.

What Should Corporations Do?

To date, we have seen the various Working for Workers acts pass with little to no modification from the original draft.  We anticipate the same with this Bill.  Corporations, therefore, should consider a number of measures to address the risk that will come from the inclusion of the $500,000 minimum in the OHSA.  Those measures include:

• Ensuring OHS Program Compliance: This is an almost trite comment, but the fact is the best means of managing the risk associated with multiple OHSA convictions is to not have charges in the first place.  The potential for the $500,000 minimum should be treated as a reminder to review and verify the efficacy of the company’s OHS program.  Are there elements that are missing or need updating or revising?  Are the elements or requirements of the program actually being carried out by workers?  Addressing any deficiencies now would be a prudent step to manage the likely expansion of OHSA risk;
• Strategic Responses to Workplace Incidents and Ministry Investigations: In our experience, many organizations do not conduct meaningful internal investigations when a workplace incident has occurred.  This gap means information that could be helpful can be lost and makes it more likely that the Ministry of Labour, Immigration, Training and Skills Development’s (“Ministry”) factual record becomes the totality of the facts in a case.  We have also seen organizations provide the Ministry with internal investigation reports containing prejudicial information and comments that diminish the possibility of successfully defending subsequent OHSA charges.  Organizations should, therefore, be revisiting internal practices for addressing workplace incidents and Ministry investigations to ensure all information favourable to the company is gathered and, to the extent legally permitted, the organization is collecting and controlling the dissemination of information; and
• Consider Response in Current and Future OHSA Prosecutions: If the organization is currently facing charges under the OHSA, the potential consequences of a conviction could be much more significant than currently provided for in the OHSA.  The organization should be consulting with experienced OHSA trial counsel about the potential for a successful defence and/or other strategies to avoid a conviction.  The better risk management decision might be, depending up on all of the circumstances, to pursue the matter to trial in order to avoid a conviction and potential exposure to the $500,000 minimum.  That same approach should also be applied to future charges.

There are applications lawyers can make to a court for relief from the $500,000 minimum fine but those would be made after a conviction.  With the potential for a very significant penalty for second and subsequent convictions, it would be preferable to adopt the proactive measures to avoid a conviction (highlighted above) before relying on reactive efforts to minimize its consequences.

If you have any questions about this topic, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer.

This newsletter is not intended as legal advice. Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer  for assistance.