Employment Update
April 2022 Charity & NFP Law Update
Published on April 28 2022

By Barry W. Kwasniewski
   
 

New Working for Workers Act Enacts $1.5M Maximum Fine for D&Os under OHSA

Ontario’s newest legislative changes for workplace health and safety include a much higher level of risk for non-compliance by corporate directors and officers, including those serving in those roles for charities and not-for-profits. Bill 88, the Working for Workers Act, 2022 received Royal Assent on April 11, 2022 (“Bill 88”). It amends both the Employment Standards Act, 2000 (ESA) and the Occupational Health and Safety Act (OHSA). In particular, amendments to the OHSA raise the maximum fines significantly for convictions: from $100,000 to $1,500,000 for directors and officers of corporations — including charities and not-for-profits; or $500,000 for other individuals. Bill 88 also adds a list of aggravating factors to the OHSA to be considered in determining a penalty, and extends the limitation period for instituting a prosecution from one year to two years. These changes to penalties and prosecution under the OHSA will take effect on July 1, 2022. Further obligations under the OHSA for certain employers to provide naloxone kits and train staff on their use will take effect on a forthcoming date by proclamation of the Lieutenant Governor of Ontario.

Part IX of the OHSA for Offences and Penalties currently states under section 66 (1), “Every person who contravenes or fails to comply with” its provisions or regulations is liable to a fine of up to $100,000 or twelve months’ imprisonment, or both. The maximum fine for a corporation is $1,500,000 under subsection 66 (2). Bill 88 amends this section by increasing the individual fine in subsection (1) to $500,000, and adds a new subsection (2.1):

(2.1) A director or officer of a corporation who contravenes or fails to comply with section 32 is guilty of an offence and on conviction is liable to a fine of not more than $1,500,000 or to imprisonment for a term of not more than twelve months, or to both.

Section 32 of the OHSA, Duties of directors and officers of a corporation, states:

 32 Every director and every officer of a corporation shall take all reasonable care to ensure that the corporation complies with,

      (a) this Act and the regulations;

      (b) orders and requirements of inspectors and Directors; and

      (c) orders of the Minister.

The individual liability for directors and officers of a corporation, set at the same maximum amount as the corporation itself, is a new addition to the OHSA by Bill 88, and underscores the need for directors and officers of charities and not-for-profits to take seriously all of the health and safety obligations of their organizations as required of employers. Directors and officers should establish a proactive system of rigorous compliance, undertake a comprehensive regular review of all relevant workplace health and safety issues, and document all steps taken in detail to ensure due diligence with regard to OHSA requirements, as well as carefully document any incidents that may occur with actions taken in response. Such documentation is necessary and could be significant evidence in defence if the corporation is ever party to a claim against it under the OHSA in litigation.

Aggravating factors for “the purposes of determining a penalty” under section 66 of the OHSA are added by Bill 88 in a new subsection (2.2):

(2.2) Each of the following circumstances shall be considered an aggravating factor for the purposes of determining a penalty under this section:

1. The offence resulted in the death, serious injury or illness of one or more workers.

      2. The defendant committed the offence recklessly.

      3. The defendant disregarded an order of an inspector.

4. The defendant was previously convicted of an offence under this or another Act.

5. The defendant has a record of prior non-compliance with this Act or the regulations.

      6. The defendant lacks remorse.

      7. There is an element of moral blameworthiness to the defendant’s conduct.

8. In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.

      9. After the commission of the offence, the defendant,

i. attempted to conceal the commission of the offence from the Ministry or other public authorities, or

                  ii. failed to co-operate with the Ministry or other public authorities.

      10. Any other circumstance that is prescribed as an aggravating factor.

Bill 88 also adds subsection 66 (5), which provides express allowance for a prescribed court order “in addition to any fine or imprisonment that is imposed” by the OHSA. The extended limitation period, from one to two years, is in section 69 of the OHSA. Taken together, these changes add significant risk to directors and officers of charities and not-for-profit organizations for potential liability for workplace health and safety.

   
 

Read the April 2022 Charity & NFP Law Update