Ontario: Proposed Amendments to the OHSA put Corporate Officers and Directors on Notice and May Imperil Charter Protections for all Defendants

By Ryan J. Conlin and Jeremy Schwartz - Stringler LLP

March 7, 2022

The Ontario government has introduced the Working for Workers Act, 2022, which contains significant proposed changes to the Occupational Health and Safety Act. The legislation has passed first reading in the Ontario Legislature.  If passed, more significant fines could be imposed on individuals and senior executives, the limitation period for laying charges would double, and a laundry list of sentencing factors would be enshrined for the Courts to apply. In our respectful view, if some of these changes were to pass as drafted, there is a significant risk that defendants’ Charter rights would be imperilled.

Changes to Maximum Fine Amounts

Perhaps the most significant proposed change is a dramatic increase in the potential maximum fine for individuals from $100,000 to $500,000 per count.  For officers and directors, the maximum fine would increase to $1,500,000 per count, a 15-fold increase, which is the same maximum fine that may be imposed against corporations.

These amendments suggest that the Ontario government would like the Courts to get tougher on individuals who are convicted of workplace safety offences.  Historically, the fines imposed against individuals have been significantly lower than the fines imposed against corporations.  In fact, it has historically been common for charges against individuals to be withdrawn if the corporation agrees to plead guilty and pay a fine.

The proposed increase to the maximum fine for officers and directors should put senior executives on notice that the government is signaling that fines should dramatically increased in prosecutions of corporate officers and directors. If the legislation passes, prosecutors may argue that the Legislature wants executives to face fines which are in a similar range to the fines for corporations.

Of course, it is important to note that maximum fines are reserved for what Courts call the “worst case, worst offender”.  However, some Courts have recently signaled that an increase in the maximum fines should result in an increase to the range of penalties imposed (see R. v Hoyeck and R. v Gibson Energy ULC).  Other Courts have taken a different approach and suggested that unless a minimum fine is introduced, an increase to the maximum fine does not necessarily require an increase in fines imposed against all offenders (see R. v Carrier Forest Products Ltd.)

Increase in the Limitation Period

The government is proposing that the limitation period for laying charges under the OHSA be increased from 1 year to 2 years.  This is an important change as it would allow prosecutors considerably more time to determine whether charges should be laid.  In our experience, it is not uncommon for prosecutors to lay charges right before the limitation period expires.  It remains to be seen whether it will become commonplace for it to take longer for charges to be laid.

If charges do take longer to lay in practice, this may give rise to significant Charter concerns for defendants who may now be faced with longer “inspections” before charges are laid.

The OHSA provides Ministry Inspectors significant inspection powers to require the production of documents and information, and even to order testing and reporting on the causes of an accident by the responsible party. Once the inspection “crosses the Rubicon” and becomes an “investigation” into the likely commission of an offence, inspectors may no longer use their broad inspection powers and must instead rely on either voluntary cooperation or court orders.

The issue of at what point an Inspector has “crossed the Rubicon” has been legally controversial since the seminal decision of the Ontario Court of Appeal in Inco.  Frighteningly, recent caselaw out of British Columbia has suggested that Inspectors are subject to a lower standard of Charter scrutiny on the basis that employers voluntarily entered into a field of regulated activity. If these principles were adopted in Ontario, and the limitation period doubled as proposed, Ministry Inspectors may be given fairly broad latitude to use regulatory inspection powers to compel information literally years after the accident.

Sentencing Factors

The seminal Ontario Court of Appeal decision in R. v Cotton Felts Ltd. laid out the factors which the Courts follow when sentencing corporations for most regulatory offences, including workplace safety offences. The government is proposing the following factors for Courts to consider as “aggravating” (issues that point towards a more severe penalty):

1. The offence resulted in the death, serious injury or illness of one or more workers
•    This has always been a factor that points to a higher fine and has historically been one of the most important sentencing issues.

2. The defendant committed the offence recklessly.
•    Strict liability offences do not have a mental element and thus the prosecutor is generally only required to prove the contravention occurred.  It is possible that this factor could involve prosecutors calling evidence at a sentencing hearing (known as a “Gardiner” hearing) to prove this aggravating factor beyond a reasonable doubt.

3. The defendant disregarded an order of an inspector.
•    This has always been an aggravating factor.

4. The defendant was previously convicted of an offence under this or another Act.
•    A prior record is not surprisingly something that Courts have considered in sentencing hearings.

5. The defendant has a record of prior non-compliance with this Act or the regulations.
•    This could significantly expand the scope of what is typically introduced at hearings and could lead to the prosecution introducing compliance orders that have been issued and not appealed.  If passed, employers will have another reason to consider challenging orders that are not legally sound.

6. The defendant lacks remorse.
•    This factor is highly problematic in our view.  Courts across Canada have consistently held that while remorse can be considered as a mitigating factor on sentence, the opposite is not true.  The Ontario Court of Appeal recently commented that relying on a lack of remorse as an aggravating factor comes "perilously close" to punishing a defendant for exercising their Constitutional right to make full answer and defense.

7. There is an element of moral blameworthiness to the defendant’s conduct.
•    This factor is often relied on by Courts in sentencing cases involving serious criminal charges.  It may also require an expanded sentencing hearing to explore the background facts giving rise to the commission of the offence.

8. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.
•    This has always been an aggravating factor.

9. After the commission of the offence, the defendant,
•    attempted to conceal the commission of the offence from the Ministry or other public authorities
     o    Failing to notify the Ministry of an accident where required to do so, disturbing the scene, and obstructing an Inspector are offences which are routinely prosecuted by the Ministry.  Clearly, it would be inappropriate to punish employers for exercising their constitutional rights to make full answer and defense or for relying on a legally recognized privilege.
•    failed to co-operate with the Ministry or other public authorities.
     o    This provision could be highly problematic. Certainly, an employer that cooperates fully with the investigation should be entitled to have such cooperation recognized by a Court as a mitigating factor.  However, a failure to cooperate outside the context of a clear legal obligation to do so may be unconstitutional. Coupled with a doubling of the limitations period and potentially extended “inspections,” employers may effectively lose the right to remain silent altogether.

We are hopeful that the government carefully considers the potential consequences and implications of this language during debate on this bill. Join us on March 28 for a complimentary webinar, where we will discuss these proposed amendments and ways for management and senior executives to respond.

Naloxone Kits

The government is proposing that where an employer becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at a workplace, the employer is required to have a naloxone kit present at the workplace.  The proposed legislation sets out various obligations related to training of workers and storage of the kits.
We are hopeful the government will provide more details about how to assess the risk of an opioid overdose in a particular worker.
 
For more information, please contact:
Ryan J. Conlin at rconlin@stringerllp.com or 416-862-1687
Jeremy Schwartz at jschwartz@stringerllp.com or 416-862-7011