Employers are responsible for ensuring their continued compliance with the guidelines set out in Ontario’s Occupational Health and Safety Act (OHSA) and regulations. Beyond encouraging a safe and healthy environment, maintaining high workplace health and safety standards can also help promote employee productivity and seamless operations.
However, despite an employer’s best efforts to implement adequate policies and training, employee misconduct may still contribute to a violation of such standards. So, as the party responsible for upholding workplace standards, what defences are available to employers against charges under the OHSA?
An Overview of Ontario’s Occupational Health and Safety Act
In Ontario, the Occupational Health and Safety Act (OHSA) and its corresponding regulations are the primary legislation setting standards and regulations on workplace health and safety throughout the province.
The OHSA sets out various workplace health and safety policies that employers are expected to adhere to and implement to manage and mitigate various health and safety hazards and risks in the workplace.
Application of the Occupational Health and Safety Act
The Occupational Health and Safety Act applies to most provincially-regulated workplaces, employers, and workers throughout Ontario, with limited exceptions.
The OHSA defines an employer as a person who “employs or contracts for the services of one or more workers. The OHSA defines a worker as someone who “performs work or supplies services for monetary compensation.” A workplace is any place on or near where the worker performs their work.
Enforcement, Violations and Penalties
The Occupational Health and Safety Act outlines the legal duties and standards that employers, supervisors, owners, suppliers and workers must maintain. However, employers hold the highest responsibility in ensuring that health and safety guidelines are implemented and risks are mitigated in the workplace. Employers are also required to ensure that workers adhere to certain prescribed measures and that workers are provided with the appropriate equipment, protective devices, and materials to maintain compliance.
The Ontario Ministry of Labour, Training and Skills Development is responsible for promoting, regulating and enforcing the OHSA, often through workplace inspections.
Workplace Inspections
An inspector from the Ministry of Labour, Training and Skills Development may conduct a proactive or reactive workplace investigation to ensure a workplace complies with the Occupational Health and Safety Act.
Under the OHSA, an inspector has the authority to:
- complete investigations at provincially regulated workplaces;
- issue administrative orders for violations of the OHSA and/or its regulations; and
- initiate proceedings for charges made under the OHSA and/or its regulations.
It is important to note that interfering with an inspection (for example, by providing the inspector with false information or failing to cooperate with the inspector) constitutes an offence under the OHSA.
After the investigation, an inspector may provide recommendations to the workplace. Alternatively, the responsible party may be prosecuted if the inspector determines that the workplace has committed an offence under the OSHA.
Notice of Compliance
After an inspection, the employer may receive an order to correct a contravention of the Occupational Health and Safety Act. The employer must provide the Minister of Labour, Training and Skills Development with written notice of compliance within three days of complying with the order. As per section 59 of the OHSA, the notice of compliance and the original order must be posted in the workplace for 14 days after notifying the Minister of Labour, Training and Skills Development.
However, if a party disagrees with the inspector’s order, it can be appealed under section 61(1) of the OHSA within 30 days of issuance. Decisions are appealed to the Ontario Labour Relations Board, which will render a final decision.
Consequences of Non-Compliance With OHSA
Consequences for violations of the Occupational Health and Safety Act can be significant. Employers, supervisors and workers can be prosecuted for a breach of the OHSA or non-compliance with an order of the inspector, Minister, or director. If a party is found guilty and convicted of an offence, they may be subject to a fine and/or jail time.
Fines and Imprisonment
The maximum fine for a corporation that violated the OHSA is $1,500,000. A corporate director or officer who fails to enforce compliance with the OHSA can be found guilty of an offence and face up to 12 months of imprisonment and/or a fine of up to $1,500,000. The maximum fine for non-compliance by an individual who is not a corporate director or officer is $500,000.
In 2022, the limitation period for initiating a prosecution under the OHSA was extended from one to two years.
Aggravating Factors in Sentencing
In 2022, the Working for Workers Act, 2022 was enacted and introduced several aggravating factors to be considered when determining an appropriate penalty for an OHSA conviction. These aggravating factors are in line with previous leading case law and are circumstances that call for an increased penalty for OHSA violations.
The aggravating factors now included under section 66(2.2) of the Occupational Health and Safety Act are:
- The offence resulted in the death, serious injury or illness of one or more workers;
- The defendant committed the offence recklessly;
- The defendant disregarded an order of an inspector;
- The defendant was previously convicted of an offence under this or another Act;
- The defendant has a record of prior non-compliance with the OHSA or its regulations;
- The defendant lacks remorse;
- There is an element of moral blameworthiness to the defendant’s conduct;
- In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs;
- After the commission of the offence, the defendant,
- Attempted to conceal the commission of the offence from the Ministry or other public authorities, or
- Failed to cooperate with the Ministry or other public authorities; and
- Any other circumstance that the OHSA prescribes as an aggravating factor.
Defending Against Occupational Health and Safety Act Charges
Employers must keep up-to-date workplace policies and procedures that comply with the Occupational Health and Safety Act. Further, all workers and other individuals present at the workplace must be adequately trained to maintain a safe workplace. While it is impossible to completely remove the risk of potential hazards, taking time to ensure robust preventative measures are in place can help defend against potential charges if an accident occurs. Working with an experienced employment lawyer is vital to ensure the employer is protected at any stage of an OHSA matter.
Two common defences to charges under the OHSA include “officially induced error” and “due diligence.”
Due Diligence Defence
The due diligence defence is based on court interpretations of section 66(3) of the OHSA. To be acquitted under this defence, the defendant must establish that they took all reasonable and required precautions to avoid the incident, despite the incident occurring.
The case of R. v. City of Sault Ste. Marie (City) states that the defence of due diligence is available in situations where:
- The accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent; or
- The accused took all reasonable steps to avoid the particular event.
The first portion of the defence requires the defendant to have genuinely believed that they were compliant with the provisions of the OHSA. The second tier of the defence establishes that, despite the violation, the defendant took all reasonable steps and precautions to remain compliant with the OHSA. However, while courts acknowledge defendants may not be perfect in their due diligence efforts, asserting the defence of due diligence comes with a high threshold for the defendant to meet.
No exceptions for the “expense of compliance”
Historically, the defence of due diligence could be allowed when the employer established that compliance with a particular provision in the Occupational Health and Safety Act was cost-prohibitive. However, in the case of R. v. Canada Brick Ltd., the Ontario Superior Court of Justice determined arguments based on “the expense associated with compliance cannot generally be sustained.”
The Defence of “Officially Induced Error”
“Officially induced error” refers to situations where the defendant’s actions were based on advice received from an official. The case of Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec Inc. set out the elements of the defence of officially induced error by stating that a successful defendant must show that:
- An error of law or law and fact was made;
- The defendant considered the legal consequences of their actions;
- The advice relied upon came from an appropriate official;
- The advice was reasonable;
- The advice was erroneous; and
- The defendant relied on the advice in committing the act.
In Ontario v. Sunrise Propane Energy Group Inc., the Ontario Court of Appeal highlighted reasonableness as a vital component of the defence of officially induced error. The Court affirmed that this defence might be available to an employer who can prove, on a balance of probabilities, that it reasonably relied on the advice of a public official who administers and enforces a particular statute (the OHSA). However, the threshold for this defence is also high and can be challenging to establish.
Contact the Lawyers at Willis Business Law in Windsor for Trusted Defences Against Occupational Health and Safety Act Charges
The skilled employment lawyers at Willis Business Law work with clients to resolve various employment law disputes. We work closely with employers to provide comprehensive legal advice and develop robust legal solutions on matters involving workplace policies and workplace health and safety. When an employer has been charged for an infraction under Ontario’s Occupational Health and Safety Act, our employment law team, led by J.P. Karam, ensures that employers have adequate information and a sound understanding of their options when establishing their defence.
Located in the heart of Windsor’s financial district, Willis Business Law assists clients throughout Windsor-Essex and the surrounding areas. If you have been charged with a violation under the Occupational Health and Safety Act, or have questions regarding workplace policies, contact us online or call us at 519-945-5470 to schedule a confidential consultation.