Bill 177 introduces major Occupational Health and Safety changes in Ontario

Key takeaways:

• The maximum fine that can be imposed on an individual or corporation has substantially increased.
• Those most likely to be at risk for higher fines are repeat offenders and very large multinational corporations.
• A charge under the Occcupational Health and Safety Act (OHSA) can now be laid more than one year from the date of the alleged contravention of the OHSA or its regulations.

On 14 December 2017, Bill 177 introduced the most significant changes to the OHSA in nearly 30 years. The Ontario government has, amongst other things, tripled corporate fines and quadrupled individual fines, introduced uncertainty into the limitation period (previously one year from the date of the alleged contravention), and added to the circumstances requiring notification of the Ministry of Labour. Here we discuss the changes and analyse the impetus for them, as well as the potential impact on Ontario employers, management and workers.

Increased maximum on fines

Since 1990, the maximum corporate penalty for a violation of the OHSA has been a fine of CAD 500,000 per charge. From 14 December 2017, corporations became liable to a maximum fine of CAD 1,500,000 per charge. Individuals are now exposed to a maximum fine of CAD 100,000 per charge for a contravention of the OHSA: a four-fold increase from the previous CAD 25,000 maximum. This is in addition to a potential jail term: the maximum term of 12 months was not changed. The Victim Fine Surcharge of 25%, automatically imposed under the Provincial Offences Act, may still apply to any fine imposed (on 14 December 2018, the Supreme Court of Canada struck down mandatory surcharges under the Criminal Code of Canada.  This may also affect mandatory provincial surcharges).

The impact of these changes is not yet clear. The prosecutions to which the higher penalties will apply are still in their infancy and it is impossible to predict how Crown prosecutors will seek to apply the increased penalties. The early indications are that there will not be an automatic tripling or quadrupling of fine amounts. However, we do anticipate that the increased sentencing range will have the greatest impact on defendants with prior convictions for similar offences and on very large corporations.

Limitation period

Historically, the limitation period for a prosecution under the OHSA has been one year from the date of the alleged contravention. From 14 December, 2017, the one-year limitation period now runs from the date on which an Inspector becomes aware of the alleged offence. This means, if an Inspector becomes aware today of a contravention of the OHSA or its regulations that occurred more than one year ago or even prior to December 2017, an investigation can be initiated anytime within the next year.

For organisations, the expansion of the limitation period may require a more strategic approach. One example is how an employer responds to workplace incidents that are not immediately reportable to the Ministry of Labor (MOL). This could include serious injuries that do not meet the definition of a ‘critical injury’. In such cases, it is possible that the MOL could learn of the injury after significant time has passed and begin an investigation. In light of this, it would be prudent for employers to conduct a detailed internal investigation of all such incidents and to ensure that the proper steps are taken to protect that investigation with solicitor-client privilege. This approach will allow the organisation to gather detailed information and documentation, while the matter is fresh, and to resist any MOL requirement for investigation materials, should it investigate the matter. In sum, this change has the potential to have a profound effect on employer liability under the OHSA, on matters relating to prosecutions, and on the strategic considerations for organisations and management.

New reporting requirements

As of 14 December 2017, an employer must notify the MOL if a joint health and safety committee or a health and safety representative identifies potential structural inadequacies of a workplace as a source of danger or a hazard to workers. This includes potential structural inadequacies in a building, structure or any other part of a workplace, whether temporary or permanent. Notably, and for reasons that are not clear, this obligation does not apply to an employer that owns the workplace.

The OHSA also opens the door for an expansion of the places at which employers or other parties are required to report an accident or other incident under section 53 of the OHSA. This means that incidents like explosions, fires, floods, and equipment failures may need to be reported in future even when they do not result in a fatal, critical, or disabling injury and even when they occur in places other than a construction site or a mine.

Bill 177 also allows for regulations to specify additional notice requirements that must be met when a person is killed or critically injured at a workplace; when a person is disabled or requires medical attention because of an accident, explosion, fire, or incident of violence at a workplace; and when an accident occurs at a project site or mine. This may result in statutory requirements for further details and particulars of investigations and corrective action to be included in accident reports in the foreseeable future.

We anticipate that the changes to the OHSA by Bill 177 will change health and safety enforcement in Ontario. Record-setting fines may loom on the horizon. Historic matters believed to be long over may be actionable through prosecutions, and an increasing number of workplace events and circumstances may have to be reported to the MOL for investigation. Employers and management would be well advised to ensure that the organisation’s health and safety program is robust and well documented, and that MOL investigations and workplace incidents are addressed in a manner consistent with the possibility of even more significant OHSA liability.

Key question:Should a privileged report be created every time there is an investigation?

The answer is a qualified ‘no’. Not every health and safety investigation needs a privileged report. However, decisions on how to approach an investigation must reflect the level and nature of the risks facing the organisation and management as a result of the event that triggered the need for an investigation. The more significant the risk, the greater the justification for a privileged investigation and report. In light of the potential consequences (from the increased maximum penalties), legal advice would be appropriate even when the need for a privileged investigation is not immediately clear.

Bill 30 in Alberta: new responsibilities for employers and rights and responsibilities for employees

Key takeaways:

• New workplace roles and responsibilities
• Employers have increased responsibility for the health and safety of their workers
• Employees have the right to participate in health and safety activities

On 15 December 2017, Bill 30: An Act to Protect the Health and Well-being of Working Albertans, received Royal Assent. It took effect on 1 June 2018.

Bill 30 significantly changed Alberta’s Worker’s Compensation Board (‘WCB’) and Occupational Health and Safety (‘OHS’) legislation. While the Workers’ Compensation Act (‘WCA’) was simply amended, the Alberta Occupational Health and Safety Act (the ‘AOHSA’) was repealed and completely replaced. These changes will have far reaching cost and operational implications for many employers in Alberta.

The WCB changes highlight the legislature’s desire to bring about a worker-centred system that features greater independence, transparency, stakeholder engagement and accountability. This approach has resulted in the introduction of a worker Code of Rights and Conduct, established under the authority of section 9.2 of the WCA. The effect is that there will be significant additional costs for employers and some uncertainty as the existing system is calibrated in accordance with the new legislation.

The primary focus of the new AOHSA is on the three fundamental rights of workers:

• the right to know;
• the right to participate; and
• the right to refuse unsafe work.

The following section outlines some key changes proposed in Bill 30.

Positive duties for employers and supervisors

Various positive duties and requirements were imposed on employers and supervisors, such as:

• a positive obligation to ensure that none of the workers employed by them or under their supervision participate in acts of workplace violence or harassment;
• an obligation to ensure that workers are aware of their rights and duties and are properly trained so as to ensure their health and safety obligations will be protected;
• an obligation to ensure that health and safety concerns are addressed and resolved in a timely manner;
• a requirement to report any incidents that could have caused a serious injury;
• a requirement for an employer with 20 or more employees to have a written health and safety program with prescribed elements;
• a requirement for an employer with 20 or more employees to have a joint worksite health and safety committee, and an employer with between five and 19 employees to have a health and safety representative.

Key obligations for workers

Bill 30 also imposes some key obligations on workers to motivate them to take reasonable care to ensure the health and safety of themselves and others around them, including:

• Workers are required to wear all required personal protective equipment or other devices designed to keep them safe at all necessary times on a worksite.
• Workers are required to report concerns about unsafe or harmful work to their employer or supervisor.
• Workers are required to cooperate with other people for the purposes of protecting the health and safety of workers on a worksite.

Other key changes

The following key changes were also included:

• The existing obligation to ensure the health, safety and welfare of workers engaged in the work of an employer, or present at the work site at which such work is carried out, was expanded to include anybody who may be affected by the hazards at or in the vicinity of the work site in question.
• Workers were granted the right (no longer an express obligation) to refuse unsafe work if the worker reasonably believes that the work poses a threat to their health and safety without an interruption to their regular wages and benefits.
• Workers directly affected by stop work orders and stop use orders will be entitled to the same wages and benefits that they would have received had those orders not been issued
• Employers are prohibited from attempting to make a worker work in conditions where the employer or supervisor ought to know that the condition is, or is likely to be, dangerous for the worker.
• The implementation of new obligations on prime contractors (now limited to oil and gas and construction activities, sub-contractors, suppliers, supervisors, land owners, and service providers).