Windsor-Essex County Employment Lawyers Defending Employers Against OHSA Charges

The Occupational Health and Safety Act (OHSA) is the primary legislation setting standards and regulations on workplace health and safety in most provincially-regulated workplaces in Ontario. Employers hold the highest level of responsibility to ensure health and safety risks are mitigated in the workplace and standards and prescribed measures are upheld. Employers can face business interruptions, substantial fines, and even jail time if they are found not to have complied with the OHSA.

Willis Business Law provides comprehensive, trusted advice to employers across Windsor-Essex County about their obligations under the Occupational Health and Safety Act. The firm builds robust defences for employers facing OHSA charges and helps them implement workable strategies to reduce their exposure to liability.

What Duties Do Employers Have Under the OHSA?

Generally speaking, the Occupational Health and Safety Act requires employers to:

• Provide information, instruction, and supervision to workers to protect their health and safety;
• Provide information (including confidential business information), for diagnosis or treatment, to medical practitioners in the event of a medical emergency;
• Appoint competent supervisors;
• Acquaint workers or a person in authority over a worker with any work hazards, and in the handling, storage, use, disposal, and transport of any article, device, equipment, or a biological, chemical, or physical agent;
• Cooperate with and assist the employer’s health and safety representative and health and safety committee in carrying out their functions;
• Only employ workers who are over the prescribed age (if there is a minimum age requirement), and not permit a person who is under that age to be in or about the workplace;
• Take every precaution reasonable in the circumstances to protect a worker;
• Post, in the workplace, a copy of the OHSA and any explanatory material provided by the Ministry of Labour, Training and Skills Development, outlining the rights, responsibilities, and duties of workers;
• Prepare and annually review a written occupational health and safety policy, and develop and maintain a program to implement the policy;
• Post a copy of the occupational health and safety policy at a conspicuous location in the workplace;
• Provide any reports on occupational health and safety to the workplace’s health and safety committee and/or representative, and advise workers of the report (and make it available to them on request); and
• Notify a Director (an inspector appointed as Director under the OHSA) if the employer’s health and safety committee or representative has identified any potential structural inadequacies of a building, structure, or other part of a workplace that could pose a danger or hazard to workers.

In addition to these duties, employers have many other specific responsibilities set out in the OHSA and various regulations, depending on the industry and type of work engaged in at the workplace.

What Consequences Can an Employer Face for Violating the OHSA?

Employers, supervisors, and workers can all face significant fines and/or jail time for violating the OHSA. Charges can also be filed for failing to comply with an order from an inspector or Minister. OHSA charges can be filed anytime within the two-year period following the violation.

Corporations found guilty of an OHSA violation can be fined up to $1.5 million. A corporate officer or director who fails to enforce compliance with the OHSA faces the same maximum fine and/or up to 12 months of imprisonment. Non-compliance by other individuals (who are not corporate directors or officers), can be fined up to $500,000.

In What Circumstances Is an Employer Likely to Face a Higher Fine or Jail Time?

Since 2022, the Occupational Health and Safety Act has included a list of aggravating factors to be considered when sentencing a person or corporation found guilty of an OHSA violation. These factors increase the likelihood that the defendant/employer will face substantial fines and/or jail time, although each case depends on its facts.

The aggravating factors under section 66(2.2) of the OHSA are:

• The offence resulted in the death, serious injury or illness of one or more workers;
• The defendant/employer committed the offence recklessly;
• The defendant/employer disregarded an order of an inspector;
• The defendant/employer was previously convicted of an offence under the OHSA or another Act;
• The defendant/employer has a record of prior non-compliance with the OHSA or its regulations;
• The defendant/employer lacks remorse;
• There is an element of moral blameworthiness of the defendant/employer’s conduct;
• In committing the offence, the defendant/employer was motivated by a desire to increase revenue or decrease costs;
• After the commission of the offence, the defendant/employer:
  • 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; or
• Any other circumstances prescribed under the OHSA or its regulations as an aggravating factor in the future.

What Defences Are Available to an Employer Charged With an Offence Under the OHSA?

Employers can proactively avoid OHSA charges by ensuring their workplace health and safety policies are regularly reviewed and revised to be kept current with the latest legal requirements. It is also crucial to regularly train staff on identifying, mitigating, and removing (when possible) any potential hazards in the workplace.

Two common defences that may be raised by an employer charged under the OHSA are “due diligence” and “officially-induced error”.

Due Diligence as a Defence Against OHSA Charges

The “due diligence” defence is based on section 66(3) of the OHSA. Under that section, prosecution of certain OHSA charges may be successfully defended if the accused proves that every reasonable precaution was taken to avoid the violation or incident.

It is important to note that an employer cannot successfully claim due diligence simply because they prove the cost of complying with the OHSA was too high. Courts have found that “the expense of compliance” is not a valid reason to fail to take all reasonable precautions.

Officially-Induced Error as a Defence Against OHSA Charges

An employer may claim the defence of “officially-induced error” if their actions were based on advice received from a public official who administers and enforces the OHSA (for example, an inspector, Director, or Ministry official). This defence can be challenging to establish and requires a high threshold of proof.

Willis Business Law Offers Trusted Advice to Windsor-Essex County Employers on OHSA Requirements

Through its experience working with employers of all sizes and across all industries, the employment law team at Willis Business Law offers top-calibre advice on employers’ responsibilities under the Occupational Health and Safety Act (OHSA). The firm proactively addresses potential OHSA issues and provides skilled, knowledgeable advocacy to employers facing charges for alleged OHSA violations. Through its knowledge of the various defences available to employers, Willis Business Law helps businesses avoid unnecessary financial pitfalls and operational liabilities.

From its office overlooking the beautiful riverfront in the Windsor financial district, Willis Business Law provides dynamic employment law, labour law, and business law services to clients throughout Windsor-Essex County, including Amherstburg, Essex, Kingsville, Lakeshore, LaSalle, Leamington, Pelee Island, Tecumseh, Chatham-Kent, and Sarnia. To schedule a consultation with a member of the firm’s employment law group, please call 519-945-5470 or contact us online.