This is the last article in our series discussing the changes enacted by Bill 148, the Fair Workplaces, Better Jobs Act, 2017. It is appropriate that this is the last article because while Bill 148 made many changes to the Employment Standards Act, 2000, it only made one change to the Occupational Health and Safety Act ("Act"). This article discusses that amendment and other changes made to the Act this year.
Bill 148 changed the 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 recordings of performances of any kind, including theatre, dance, ice skating, comedy, musical production, variety, circus, concerts, opera, modelling, or voice-overs.
This was not the only change to the Act this year. As previously reported in Fasken's Occupational Health and Safety Bulletin, Bill 177, the Stronger, Fairer Ontario Act (Budget Measures), 2017 also made changes to the Act. 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 Act, individuals may now be fined up to $100,000. This has quadrupled from the previous maximum of $25,000. Jail sentences for individuals remain unchanged at a maximum of 12 months. The maximum fine for corporations has increased threefold from $500,000 to $1.5 million. These maximums do not include the mandatory Victim Fine Surcharge required under the Provincial Offences Act which adds an additional 25% surcharge on any fine over $1,000.
Before Bill 177 was passed, the limitation period for laying charges under the 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 day 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. 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.
- 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. The constructor must do so if the incident occurs on a project site. The obligation falls on the employer in a mine or mining plant.
- Authorizes the making of new regulations to specify additional circumstances under which persons are required to report an accident or other incident to the Ministry. Those requirements are in addition to the reporting requirements currently found in the Act.
What Should We Do?
Compliance with health and safety obligations has never been more important. Ontario now has the highest penalties for a 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 Act and their current policies and procedures. Once gaps have been identified, employers should take documented steps to close those gaps. Doing so will help minimize workplace hazards, the risk of accidents or incidents, and the likelihood of any future prosecutions.