On February 28, 2022, the Government of Ontario introduced the Working for Workers Act, 2022 (“Working for Workers Act 2” or the “Act”), which, among other things, contains various amendments to the Occupational Health and Safety Act (the “OHSA”), including substantially increased penalties for directors, officers and individuals, and a doubling of the limitation period.

Pursuant to the Working for Workers Act 2, for penalty purposes, directors and officers will be separated from other individuals.  The Act sets out that such persons are subject to a maximum fine of $1,500,000 – the same as a corporation and a fifteen-fold increase from the current individual maximum.  The government also proposes to increase the maximum fine that could be imposed on other individuals (which could include supervisors, engineers, and architects) to $500,000 – a five-fold increase over the current maximum. A potential jail sentence of up to 12 months remains available for all individual defendants and can be imposed in addition to a fine.

The Act also sets out certain aggravating factors to be considered for the purposes of determining penalties against both individual and corporate defendants.  Should the proposed amendments be incorporated into the OHSA, they will introduce specific sentencing factors that a court must consider.  Those factors are set out below and, notably, only include aggravating factors, which serve to increase a penalty, and provide 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.
10. Any other circumstance that is prescribed as an aggravating factor.

The limitation period under the OHSA will also be doubled from one to two years.

The Act will also require that workplaces, in which the employer becomes aware, or ought reasonably to be aware, that there may be a risk of having a worker having an opioid overdose at the workplace, must provide and maintain in good condition a naloxone kit in that workplace. Naloxone is a medication that can temporarily reverse the effects of an opioid overdose and allow time for medical help to arrive.

The government has indicated that the obligation will apply to certain “high risk” workplaces.  It says this includes construction sites, bars and nightclubs.  However, the current draft of the Act would impose the obligation on any workplace that knows or ought reasonably to know that a worker may have an opioid overdose at the workplace. 

According to the Act, the employer must ensure that at any time workers are in the workplace, that the naloxone kit is in the charge of a worker who works in the vicinity of the kit and who has received training to recognize an opioid overdose, to administer naloxone, and who has been acquainted with any hazards related to the administration of naloxone.

These proposals accompany other changes and requirements under the Working for Works Act 2 and follow changes previously introduced by the Worker for Workers Act, 2021, which came into force in December 2021, including removing barriers for foreign-trained professionals, requiring policies on the “right to disconnect”, and banning the use of non-compete clauses.

The Working for Workers Act 2 has only just been introduced through First Reading.  There are further legislative steps that must take place before it can become law.  We will continue to monitor the progress of the Act and provide updates about future developments.  

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

The author gratefully acknowledges the assistance of Anthony Kwong, an Articling Student in the firm’s Toronto office.