Public sector parties and owners who contract for a construction project now face potentially significant Ontario Occupational Health and Safety Act (“OHSA”) liability arising from the procurement or contracting process itself.  This is because, on January 1, 2026, two new regulations took effect that require governments and public sector organizations to treat all accredited health and safety management systems (“OHSMS”) as equivalent (the “Equivalency Requirement”) and penalize those who violate this requirement. Failing to do so can now attract a penalty of up to $100,000 – a significant amount for a violation that is administrative in nature as it does not result in harm to, or the endangering of, a worker.

The Working for Workers Seven Act, 2025 (“WWA7”) became law on November 27, 2025. It amended section 7.6.1 of the OHSA by adding the Equivalency Requirement – the details of which would be subject to the OHSA’s regulations.[1]  The WWA7 also empowered Ministry of Labour, Immigration, Training and Skills Development inspectors to issue Administrative Monetary Penalties (AMPs). Again, many of the details were left to a regulation the government would draft.

On December 16, 2025, the government filed regulations to address AMPs and the Equivalency Requirement. Both regulations took effect on January 1, 2026. The AMP Regulation, O. Reg. 365/25, filled in some missing details about the AMP system. Of immediate note for governments and public sector organizations is that the sole administrative penalty set out in that regulation is for a violation of the Equivalency Requirement.

Further, O.Reg 364/25, which also took effect January 1, 2026, that we will term the OHSMS and Procurement Regulation, provides important details of the Equivalency Requirement. It narrows the application of the Equivalency Requirement to public sector procurement – at least at present. Our articles with earlier commentary on these changes are linked above. Below, we elaborate on the requirements of the OHSMS and Procurement Regulation and discuss reasonable steps that governments and public sector organizations can take to ensure compliance with the new Equivalency Requirement.

What is a Health and Safety Management System?

Section 1 of the OHSA defines a health and safety management system (generally referred to as an OHSMS) as “a coordinated system of procedures, processes and other measures that is designed to be implemented by employers in order to promote continuous improvement in occupational health and safety”. Among other things, they are intended to improve an organization’s training practices, change management processes, contractor management, hazard identification, and risk control in the workplace.

What are Accredited Health and Safety Management Systems?

In 2016, the OHSA was amended to empower the Chief Prevention Officer (the head of the health and safety prevention system in Ontario) to accredit OHSMSs if they meet applicable standards. The government subsequently published a standard that set the criteria an OHSMS is required to have in order to be accredited. As of October 2025 (the most recent list available), the Chief Prevention Officer has accredited 5 OHSMSs:

• ISO 45001:2018: Occupational health and safety management systems—Requirements with guidance for use
• CSA Z45001-19: Occupational health and safety management systems—Requirements with guidance for use
• IHSA COR™ 2020—IHSA Certificate of Recognition 2020-Health and Safety Management System-Standard
• Responsible Care—RC14001:2023 – Health, Safety and Environmental Management System
• Responsible Care—RCMS:2023 – Health, Safety and Environmental Management System

This is not intended to be a closed list and other OHSMSs could be added if accreditation is sought and given.

Who Must Comply with the Equivalency Requirement?

The Equivalency Requirement does not, under the terms of the OHSMS and Procurement Regulation, apply to private sector contracts. It only applies to government or a public sector organizations. Government includes the provincial government and its ministries, provincial/Crown agencies. There are, currently, approximately 170 Crown agencies including some administrative tribunals, the Liquor Control Board of Ontario, the Ontario Energy Board, conservation authorities and parks commissions, university Boards of Governors, airport authorities, Ontario Place Corporation, Ontario Provincial Police Detachment Boards, police service boards, the Real Estate Council of Ontario, and the Law Society of Ontario.

Public sector organizations are defined to include municipalities, transportation commissions, boards of health, public library boards, school boards, post-secondary educational institutions (that receive regular government funding), hospitals, boards of health and local housing corporations. As such, the Equivalency Requirement has broad application across the public sector.

Does the Equivalency Requirement Apply to All Public Sector Contracts?

No. It only applies to procurement or contracting for construction work for a construction project. Non-construction contracts don’t attract the Equivalency Requirement. As such, public sector organizations would be free to favour a particular OHSMS when contracting for things like maintenance, window cleaning, custodial and security services, along with numerous other non-construction services contracted for by public sector organizations.

Must the Procurement Process or a Contract Require an OHSMS?

There is nothing in the OHSA or the Regulation requiring a party seeking to contract with the government or a public sector organization to have an OHSMS. However, public sector organizations, who will be owners engaging a contractor as the “constructor” of a construction project, may choose to require the contractor to have implemented an accredited OHSMS as part of the pre-qualification process – a potential due diligence measure identified by the Supreme Court of Canada in R. v. Greater Sudbury (City), 2023 SCC 28 (CanLII). What the Equivalency Requirement prohibits is favouring a particular OHSMS when contracting for a construction project.

What are the Potential Consequences of Non-Compliance?

If a government or public sector organization does not comply with the Equivalency Requirement, as noted above, an AMP of up to $100,000 can be imposed by the Ministry of Labour, Immigration, Training and Skills Development under the AMP Regulation. That penalty can be publicized by the Ministry – including on the internet.

Also, and while this is outside our area of expertise, it seems reasonable to anticipate that non-compliance with a legal requirement in a public procurement process could result in challenges and litigation about that process separate from any Ministry action.

How Should Public Sector Organizations Respond?

In light of the Equivalency Requirement and the potential consequences of violating it, governments and other public sector organizations should take a number of steps to mitigate legal risk. These include:

• Ensuring those involved in procurement and contract administration relating to construction projects understand how a construction project is identified under the OHSA in order to understand when the Equivalency Requirement applies. In most circumstances, it will not be difficult to determine if the procurement or contract is for a construction project. However, there can be circumstances that are less clear, including such matters as large scale maintenance, and it would be prudent to minimize risk from misclassification;
• Assessing current construction procurement and contracting practices to determine if a specific OHSMS is required or favoured and, if so, altering that practice; and
• Consulting with procurement experts or legal counsel experienced in the law of public procurement about any impact this change may have on procurement or contracting processes underway at the time of the change.

Concluding Thoughts

It is not clear why the Ontario government decided to use the OHSA to, in part, regulate the procurement and contracting practices of governments and public sector organizations. This does appear to expand the OHSA into regulating commercial practices – a notable pivot from its traditional role of protecting workers through legislated workplace safety standards. Whatever the rationale, the government has moved quickly to create a means to enforce the Equivalency Requirement for public sector construction procurement and attached a potentially significant penalty for non-compliance. In addition to potential OHSA consequences, we hypothesize that non-compliance with the new Equivalency Requirement could result in additional legal risks. In short, there are new procurement and contracting risks for governments and public sector organizations to manage and it would be prudent for these organizations to assess and respond to their potential exposure.

[1] Section 7.6.1 OHSA permits accreditation of health and safety management systems which meet specific criteria. Section 7.6.1(4) OHSA specifically states: “Subject to the regulations, health and safety management systems accredited under this section are equivalents and shall be treated as such for purpose for which they are required”. We have called this the “Equivalency Requirement”. The Equivalency Requirement has then been modified and its scope limited by the OHSMS and Procurement Regulation discussed below.