Bill 177: Potentially Significant Changes to the OHSA

On November 14, 2017, shortly before Ontario’s controversial Bill 148 received Royal Assent, the provincial legislature proposed a new Bill which appears likely to result in significant amendments to the Occupational Health and Safety Act (the “OHSA”).

Bill 177: Stronger, Fairer Ontario Act (Budget Measures), 2017 (“Bill 177”), purports to increase the monetary penalties associated with contraventions of the OHSA. Bill 177 also introduces other measures which generally broaden the Ministry of Labour’s (“MOL”) information gathering and enforcement powers.

a) Increased Fines for “Offences” under the OHSA

Bill 177 proposes a significant increase in the current maximum fines for offences under the OHSA. If passed, Bill 177 would modify the maximum penalty provisions from $25,000 to $100,000 for individuals, and from $500,000 to $1,500,000 for corporations.

Historically, the maximum fines for individuals and corporations have been reserved for the most egregious cases (i.e. those involving repeat offenders, or highly public “worst case scenario” accidents). However, it stands to reason that Crown Prosecutors will rely upon these proposed amendments to increase the overall range of fines imposed against defendants across the board.

Bill 177 is certainly intended to support the provincial government’s overall goal of deterrence. We note, however, that the maximum penal sentence for a violation of the OHSA (i.e. jail time) remains the same, at one (1) year of incarceration per charge.

b) Potentially Increased Limitation Period

At present, the OHSA provides the Crown with one (1) year from the date of an accident, incident or contravention of the OHSA to initiate prosecution against an offender. Bill 177 proposes a revision of the existing limitation period, such that the limitation period under the OHSA will expire upon the later of:

  • One (1) year from the date of the contravention; or
  • One (1) year from the date upon which a MOL Inspector becomes aware of the alleged offence.

This proposed amendment is intended to avoid situations in which an alleged contravention occurs but is not “discovered” by the MOL within the standard one (1) year limitation period. This “discoverability” provision brings the OHSA in line with other civil statutes, including Ontario’s Limitations Act, 1990, and could result in the Crown prosecuting employers and individuals for alleged contraventions of the OHSA several years after they happen.

c) MOL Directives

At present, the enforcement of the OHSA is subject to significant inconsistency because of subjective proclivities of individual MOL Inspectors. Bill 177 proposes to alleviate this problem by permitting the MOL to establish written directives for use by Inspectors regarding the “interpretation, administration and enforcement” of the OHSA and its regulations. The proposed amendments to the OHSA would mandatorily require the MOL’s Inspectors to follow these directives.

This proposed change would essentially bring the regulation of MOL Inspectors in line with other agents of the MOL (such as Employment Standards Officers, who are bound by the Employment Standards Act Policy and Interpretation Manual). Further, if Bill 177 is enacted in its present form, we anticipate that Courts and Tribunals (such as the Ontario Labour Relations Board) would likely consider the MOL’s directives to be binding, assuming of course that said directives are in compliance with the OHSA.

d) Reporting Obligations

In addition to an employer’s current reporting obligations under the OHSA (critical injuries, fatalities, etc.), Bill 177 proposes to amend the OHSA by requiring employers to give notice to the Ministry of Labour any time a Joint Health and Safety Representative has identified potential “structural” inadequacies or issues at a workplace as a hazard to workers.

Bill 177 also proposes significant changes to certain reporting obligations relating to certain types of accidents at construction projects and mines.

Significantly, Bill 177 also proposes to grant the MOL the authority to impose additional reporting obligations upon employers and other workplace parties by regulation. The MOL would effectively have full discretion to determine appropriate reporting requirements, as and when necessary, without having to go through the legislature.

Key Takeaways for Employers

Bill 177 has currently passed its second reading in the legislature with minimal changes, suggesting that the aforesaid amendments to the OHSA are likely to come into force over the coming months.

While the higher “maximum” fines under the OHSA may be targeted toward large-scale employers, in circumstances involving the most egregious OHSA violations (i.e. fatalities), all employers should take note of the additional reporting obligations and limitation periods discussed above. A proactive approach to these issues will serve as the best way to avoid or reduce a potential monetary penalty under the OHSA, prosecution by the Crown, or in extreme cases a prison sentence.

We will provide continued coverage of Bill 177 as it moves through its final review, including an update on the effective date of the foregoing changes.

 

Co-authored by Tushar Anandasagar and Lucas Hendsbee.
Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.
Lucas Hendsbee is a Research Assistant at LeClair and Associates P.C. He provides research and analysis regarding all areas of the law, with a focus on regulatory compliance, policy analysis and emerging legal issues. For further information or discussion, please contact Lucas by email at Lucas@leclairandassociates.ca.

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