On November 14, 2017, the Ontario Government introduced Bill 177, the Stronger, Fairer Ontario Act (Budget Measures) 2017. The omnibus Bill proposes to amend 45 separate statutes. On November 30, 2017, the Bill passed second reading and is now before the standing committee on Finance and Economic Affairs. Most notably from the standpoint of the Occupational Health and Safety Act (OHSA), Schedule 30 of the Bill seeks to implement, among other smaller amendments, often discussed and long awaited changes to the allowable maximum fines under the OHSA. Under section 66, the OHSA currently provides for a maximum fine upon conviction of $500,000 per offence for corporations and $25,000 for individuals (plus potential jail time of up to 12 months). These maximum fines have not changed for nearly 30 years.
Given that violations under the OHSA frequently relate to critical injuries or workplace fatalities, some commentators and critics have criticized the current maximum fines as too low to adequately provide a deterrent effect. Comparisons are often made to Ontario’s environmental protection statutes where maximum fines for corporations can reach $6 to $10 million for the most serious classes of offences. Bill 177 would see the maximum fine per conviction under the OHSA rise to $1.5 million for corporations and $100,000 for individuals. It can be predicted that if the amendments become law (which is expected), the Ministry of Labour will argue for higher penalties. The proposed changes will also provide Ministry of Labour prosecutors with greater flexibility in the number of alleged violations (or “counts”) they include when laying charges.
Additionally, the Bill seeks to make changes to the one (1) year limitation period within which charges can be initiated. Currently, section 69 of the OHSA creates a one (1) year limitation period from the date of the alleged default or violation. The proposed amendment would extend the limitation period to one (1) year from the date the Ministry of Labour Inspector becomes aware of the alleged offence. The addition of a “discoverability” component will again bring the OHSA in line with other regulatory statutes such as the Environmental Protection Act. The discoverability component will not likely come into play for the most common OHSA violations such as critical injuries, where the date of the event and the point at which the Ministry of Labour become aware of the violation usually coincide. However, for historical, non-injury related allegations that do not immediately come to the attention of the Ministry of Labour (e.g. failing to take prescribed actions or violations relating to engineering reports), a prosecution may be initiated well after the date of the event.