While the Fair Workplaces, Better Jobs Act 2017 (known as 'Bill 148') made many changes to the Employment Standards Act 2000, it made only one change to the Occupational Health and Safety Act. This update discusses that amendment and other changes made to the Occupational Health and Safety Act in 2018.

What changed?

Bill 148 changed the Occupational Health and Safety Act to prohibit an employer from requiring its employees to wear "footwear with an elevated heel". This does not apply if the footwear is necessary to perform work safely. It also does not apply to employers in the entertainment and advertising industry who produce live, broadcast or recorded performances of any kind, including theatre, dance, ice skating, comedy, musical production, variety, circus, concerts, opera, modelling or voiceovers.

However, this was not the only change to the Occupational Health and Safety Act in 2018; the Stronger, Fairer Ontario Act (Budget Measures) 2017 (known as 'Bill 177') also made changes to it. The two most significant changes are the increases in the maximum fines following a conviction and the change to the limitation period for charges to be laid.

If convicted of an offence under the Occupational Health and Safety Act, individuals may now be fined up to C$100,000 – quadrupling the previous maximum of C$25,000. Jail sentences for individuals remain unchanged at a maximum of 12 months. The maximum fine for corporations has increased threefold from C$500,000 to C$1.5 million. These maximums do not include the mandatory victim fine surcharge under the Provincial Offences Act, which adds a 25% surcharge to any fine over C$1,000.

Before Bill 177 was passed, the limitation period for laying charges under the Occupational Health and Safety Act or its regulations was one year from the date of the last alleged contravention. The limitation period has now been extended to one year from either the date of the last alleged contravention or the date when an inspector becomes aware of an alleged offence; whichever is later. This could extend the limitation period – for instance, an individual or corporation could be charged if an inspector becomes aware of an alleged contravention more than a year after it actually occurred.

Three additional (and, for most employers, less significant) changes concern reporting requirements, as follows.

The act now requires an employer to notify the ministry if a committee or a health and safety representative has identified potential workplace structural inadequacies as a source of danger or hazard to workers (this does not apply if an employer owns the workplace).

The act now specifies who has the obligation to notify the ministry of certain accidents or incidents that do not lead to a death, a critical injury or a disability that prevents an employee from performing their work within two days of their occurrence. On a project site, the obligation falls on the constructor; in a mine or mining plant, it falls on the employer.

The act now authorises the making of new regulations to specify additional circumstances in which persons are required to report an accident or other incident to the ministry. Those requirements are in addition to the reporting requirements of the Occupational Health and Safety Act.

Comment

Compliance with health and safety obligations has never been more important. Ontario now has the highest penalties for contravention of workplace health and safety legislation in Canada. The extension of the limitation period and the possibility of criminal charges for workplace accidents have raised the stakes even further.

Employers should conduct a gap assessment between the requirements of the Occupational Health and Safety Act and their existing policies and procedures. Once gaps have been identified, employers should take documented steps to close them. Doing so will help to minimise workplace hazards, the risk of accidents or incidents and the likelihood of any future prosecutions.

For further information on this topic please contact Shane D Todd or Tala Khoury at Fasken by telephone (+1 416 366 8381) or email (stodd@fasken.com or tkhoury@fasken.com). The Fasken website can be accessed at www.fasken.com.

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