Last summer, the National Assembly adopted the Act to modify the Occupational Health and Safety Regime, particularly in order to increase certain death benefits and fines and simplify the payment of the Employer Assessment (Bill 35)2. Among the modifications to the Occupational Health and Safety Act (“OHSA”), Bill 35 imposes upon certain persons, although not an employer, the same obligations as that of an employer under the OHSA as well as significantly increases the fines imposed upon an employer who contravenes his obligations under the OHSA.
INCREASED SCOPE OF APPLICATION
Article 51 OHSA specifies the obligations to which an employer is bound in the area of health and safety. Foremost, an employer must take the necessary measures to protect the health and ensure the safety and physical well-being of the worker.
By adopting article 51.1 OHSA, Bill 35 widens the scope of article 51 by providing that the obligations of an employer now apply to the “person who, although not an employer, retains the services of a worker, for the purposes of his establishment […]”. (Emphasis added)
In reviewing the parliamentary debates, it appears these modifications are aimed at companies who without being employers carry out activities in Quebec by using employees of a subcontractor or provided by a personnel agency.
In 2004, the Federal Government adopted Bill C-45 which modified the Criminal Code in order to facilitate criminal negligence condemnations against companies and their officers in cases of non-compliance with health and safety rules and regulations.
The fines associated to a guilty verdict of criminal negligence were vastly superior to those provided for in the OHSA.
For example, in R. v. Transpavé Inc.3, notwithstanding that the employer, a family business, had pleaded guilty to a charge of criminal negligence following the death of a worker crushed under the hooks of a palletizer and had invested considerable amounts in order to improve the health and safety of his workers following the incident, the Court of Quebec condemned the company to a $100,000 fine.
In adopting Bill 35, the Quebec legislator, not wanting to trail behind, significantly increases the amount of fines applicable to any violation of the OHSA or of its regulations (article 236 OHSA) or for any behaviour which directly and seriously endangers the health, safety or physical wellbeing of a worker (article 237 OHSA).
The amounts of the fines double as of July 1, 2010 and then triple as of January 1, 2011, taking into account if it is a 1st infraction or a repeated offence or subsequent offences. The amount of the fines will be reviewed yearly as of January 2012 (please see table below).
The objective behind these increases is to urge employers to take their obligations in the area of health and safety even more seriously.
Table: Fine increases under OHSA