In lightning fast form, the Ontario government has tripled the fines for corporations under the Ontario Occupational Health and Safety Act. Bill 177, Stronger, Fairer Ontario Act (Budget Measures), 2017 ("Bill 177") was passed with very little public consultation, and essentially no employers' association input. This decidedly anti-employer legislation, is part of the Wynne government attempt to pass pro-union legislation in an attempt to shore up its weak position in the polls before the Fall, 2018 provincial election. Bill 177 has been in force since December 14, 2017.
The important legislation is a turning point in the history of Ontario's OHSA, which has not seen such sweeping changes since 1990. It abandon's the collaborative approach of the internal responsibility system in favour of a focus on blame.
The maximum fine for corporations was increased threefold from $500,000 to $1.5 million. Individuals, including supervisors and Directors, are now liable to a fine of up to $100,000, quadrupled from $25,000. Jail sentences for individuals remain unchanged. The 25% surcharge, required under the Provincial Offences Act, is added to the penalties.
Other amendments include the following:
- Limitation Period: Up until the Bill 177 amendments, the limitation period for laying charges under the OHSA or its Regulations was one year from the date of the alleged contravention. Bill 177 revised the Act with respect to limitation periods. The limitation period is now one year from the date of the alleged contravention OR one year from the day upon which an inspector becomes aware of an alleged offence. This legislative change effectively expands the 1 year limitation period. For instance, if an inspector becomes aware of circumstances providing a basis for an alleged offence, the limitation period would be triggered, even if the "circumstances" occurred more than one year ago.
- Reporting Requirements for Structural Inadequacies: Require an employer to notify a Director under the Act if a committee or a health and safety representative has identified potential structural inadequacies of a workplace as a source of danger or hazard to workers.
These new, harsh realities for employers and management must be taken seriously. The need for an effective Occupational Health and Safety Management System ("OHSMS") is more important than ever to both prevent accidents but also to be able to establish a Due Diligence defence.