Apprehension for personal exposure to OHS charges and fines has arguably never been higher. To date in 2007, convictions and fines against individuals would appear to give credence to those concerns.
Individuals who are convicted of an offence under the Ontario Occupational Health and Safety Act (the “Act”) can be fined up to $25,000 and/or sentenced to up to 12 months imprisonment for each offence. While it is not uncommon for a supervisor to be charged together with his or her employer, a series of convictions over the course of this year are illustrative of the various capacities in which an individual faces exposure under the statute.
Examples include the following:
- A home owner was fined a total of $5,000 for three offences in connection with the death of a worker who fell from the roof of his house. The home owner was charged both as an employer and as a constructor. Two contracting companies were also convicted.
- A general manager of a fitness club was fined a total of $25,000 for four offences, including failure as a supervisor to ensure compliance with a stop work order and obstructing an inspector during the course of an investigation. The manager's employer was also convicted of various offences.
- A farmer was fined $5,000 for failure as an employer to develop and implement a procedure for operating, maintaining and cleaning a piece of equipment.
- An individual worker was fined $10,000 for failure to work in a safe manner.The worker's employer and site supervisor were also convicted.
- A company director was fined $10,000 for failure to ensure a worker was protected by a fall arrest system.
Many employers invest significant time and resources towards ensuring their workplaces are compliant with health and safety regulations. However, it is equally critical to be conscious of the fact that every individual in the workplace - owner, director, officer, manager, supervisor, and individual worker - has personal duties and corresponding liabilities under the statute.
Individuals must be aware of and committed to discharging their own health and safety responsibilities in the course of promoting and maintaining the employer's compliance. It should also be borne in mind that one individual's failure to comply with the law is almost certain to also bring charges against the employer.
While numerous express duties are prescribed to individuals in various capacities under the Act and Regulations, some of the broader responsibilities for individuals include the following:
- Owners must ensure that a workplace complies with the Act and Regulations, and that all prescribed facilities are provided and maintained appropriately.
- Directors and officers of a corporation must "take all reasonable care" to ensure that a corporation complies with the Act and Regulations, as well as any orders or requirements of inspectors or the Ministry of Labour.
- Supervisors are responsible for ensuring that workers work in a safe manner, as required by the Act and Regulations, for advising workers of potential or actual dangers, for providing written instructions where required, and for taking all reasonable precautions in the circumstances for the protection of a worker.
- Workers are responsible for working in compliance with the Act and Regulations, for using or wearing protective equipment as required, and for reporting to their supervisors any defects, hazards, or contraventions.
Of course, for many individual workers and supervisors, OHS compliance is a daily point of focus. However, for owners and directors, concern for personal exposure to OHS liability may not be so readily apparent. Nevertheless, these individuals are increasingly being held personally accountable in addition to the company itself. Moreover, the law in Ontario at present would suggest that personal indemnity provisions are not applicable or enforceable with respect to fines or costs arising from an individual's conviction for a quasi-criminal offence.
The combination of these factors, recent convictions, as well as the Bill C-45 amendments to the Criminal Code, would suggest that instances in which owners, directors, or senior management are personally charged in relation to an OHS offence are likely to increase. As such, these individuals - and indeed, all individuals in the workplace - would do well to take stock of their personal OHS compliance, as well as that of the overall workplace.