Health and Safety is getting more expensive

The Ontario Occupational Health and Safety Act (“OHSA”) and its regulations set out the rights and obligations for a number of workplace parties, including employers, supervisors, workers, and constructors. If a party has been found to have violated the OHSA, it can be charged with an offence under the Provincial Offences Act. A charge can result from a health and safety accident, or a routine inspection from the Ministry of Labour.

Minor health and safety charges are brought under Part I of the Provincial Offences Act and many of those are subject to a set fine ranging from $250 to $650. More significant offences are brought under Part III of the Act are subject to much more substantial penalties, which include significantly higher fines and even possible jail time.

Since 1990, the maximum penalty for a serious health and safety offence was $500,000 per charge for corporation, and $25,000 or up to one year in jail for individuals. In 2018, those maximum penalties were increased. But not just marginally increase, in some cases they were quadrupled!

Currently, the maximum penalty for a corporation has tripled to $1.5 million per charge. The maximum penalty for individuals has quadrupled to $100,000 per charge, and the potential jail term remains to be 12 months. All health and safety penalties are also subject to an additional 25% victim fine surcharge, which is intended to support victims of crimes.

Of course, the maximum penalties outlined in the legislation are reserved for only the most exceptional circumstances. The vast majority of fines actually imposed fall at the mid to low end of the applicable range. It is up to the court to consider a number of factors in determining the appropriate penalty in the specific circumstances. Those factors include:

• the size of the organization
• the scope of the economic activity
• the extent of actual and potential harm to the public;
• the maximum penalty that may be imposed
• the health and safety record of the company (any previous convictions)
• post incident health and safety improvements; and
• deterrence to the particular party, and to the industry as a whole.

This list of factors is not exhaustive and are not all given equal weight. The courts have recognized that the primary purpose of the sentence, and the main factor to consider, is deterrence and have said: “Without being harsh, the fine must be substantial enough to warn others that the offence will not be tolerated. It must not appear to be a mere licence fee for illegal activity.”

What does this mean to you?

With the drastic increase in the potential fines, health and safety compliance has never been more important or costly. We encourage all employers to regularly review their health and safety policy and practices to ensure compliance with the applicable laws. Not only will this minimize exposure to potential prosecution, but most importantly, it will create a healthier and safer workplace.

We are always happy to help with any health and safety concerns you may have.