Feb 13, 2018

By Cheryl A. Edwards, Jeremy Warning, Deanah Shelly and Sydney Kruth

On December 14, 2017, Bill 177 and the most dramatic and far-reaching changes made to the Ontario Occupational Health & Safety Act (OHSA) in nearly 30 years took effect. The Ontario government has, amongst other things, tripled corporate fines, quadrupled individual fines, and added new reporting requirements. Part 1 began our coverage of these changes, including the potential impact they could have on Ontario businesses, their management and leaders, and even workers, going forward. Part 2 concludes our analysis of the potential impact.

Expanded limitation period for OHSA charges

Section 69 of the OHSA establishes the deadline by which charges must be commenced (often referred to as the limitation period). Prior to the enactment of Bill 177, section 69 read: “No prosecution under this Act shall be instituted more than one year after the last act or default upon which the prosecution is based occurred”. Thus the limitation period began to run on the date on which the last event occurred, regardless of the MOL’s knowledge of the contravention.

Now, the limitation on the ability of the Crown to initiate a prosecution under the OHSA includes an element of discoverability. That is to say, if the contravention is not discovered by the MOL until a later point, the limitation may not start to run until that point. This is a result of Bill 177 adding a second phrase to section 69 establishing that the limitation can run for one year after “the day upon which an inspector becomes aware of the alleged offence”.

The amended OHSA now clearly allows a prosecution to be commenced either one year after the incident giving rise to the prosecution, or one year after the day upon which a Ministry of Labour (MOL) inspector learns of the alleged offence. This could extend the limitation period, and the risk of prosecution, in circumstances where an incident may not have been reported, even if the incident was not required to be reported. The limitation period could also be extended if a key witness comes forward or new information is discovered following the one-year limitation, though the new information would have to provide evidence of an offence where there was no such evidence previously.

The amended limitation period appears to most directly apply to latent health and safety violations that may not be immediately identifiable. This could include matters such as worker endangerment by negligent or incompetent advice from engineers and architects (addressed in subsection 31(2) of the OHSA) or safety defects resulting from substandard processes by manufacturers or fabricators. An example of the latter could be where an Ontario manufacturer or fabricator of a scaffold system or component departs from industry standards when making the system or component and workers are endangered or injured. The manufacturing defect may have occurred long before the circumstances that bring it to the attention of an MOL Inspector, yet it may now be actionable such that a charge under the general duty clause of the OHSA could be investigated and laid.

Such latent health and safety violations appear to be the principle reason for the alteration of the limitation period, and can reasonably be characterized as the government response to cases such as an unsuccessful OHSA prosecution involving the Corporation of the City of Guelph, (2012 ONCJ 251 (CanLII)), where a wall in a municipal building collapsed and tragically killed a student five years after the wall was built. The architect and the engineer involved with the project were charged under the OHSA with providing negligent or incompetent advice that endangered a worker. The charges against the architect and engineer were dismissed on the basis that they were not instituted within the one-year limitation period under the OHSA. The court found that the charges addressed the alleged provision of negligent or incompetent advice that had been given years before the collapse of the wall. The court also explicitly noted that the OHSA lacked specific language importing the “discovery principle” into the limitation period, and declined to import one into the OHSA.

In our view, this amendment should result in parties taking considerable care when determining, post-incident, whether an OHSA prosecution may occur, or whether the matter has been settled. This considerable expansion of the time frame in which a prosecution could potentially be commenced most definitely increases uncertainty in this area, as well as potential OHSA liability.

In light of this expansion to the limitation period, employers should be particularly diligent in completing a comprehensive internal investigation at the time that injuries occur in the workplace, regardless of whether the incident is reported to the MOL. Failure to complete an internal investigation at the time of the incident, or completing an investigation that is limited in scope, may result in significant prejudice to the employer should the MOL decide to commence a prosecution when it becomes aware of the alleged offence, which could, potentially, be years after the incident. While this amendment clearly provides MOL Inspectors with the ability to review past workplace incidents, how such powers of review will actually be exercised remains to be seen.

A last issue in relation to this expanded limitation period, that we believe is worth comment, is whether a matter involving an accident or injury preceding these amendments, which only becomes actionable because of the new discoverability principle added to the OHSA, would be subject to the new OHSA penalties. As noted above, if the offence occurred prior to December 14, 2017, the defendant, in our view, is not to be subject to the increased penalties. However, we anticipate debate in future cases about when the offence actually occurred, as that date will likely be determinative of which sentencing regime will apply. It is reasonable to anticipate arguments, similar to those made by the Crown in the Corporation of the City of Guelph, suggesting interpretations of the OHSA and its regulations that would see the offence as having occurred at a time that subjects the defendant(s) to the increased penalties. Consequently, we anticipate that such issues, which have seldom been litigated under the OHSA, may become more common.

New and expanding notification requirements

(a) New notification required where structural inadequacy identified: while these amendments do not increase the powers of joint health and safety committees or worker representatives, they do impose a new positive obligation upon employers to report structural hazards, alleged by representatives or the committee, to the MOL. Such potential hazards may no longer be exclusively dealt with internally. We expect this may result in further reporting, in particular at construction projects (in relation to temporary structures) and at facilities managed by external parties or owners.

Notably, there is no requirement for any reasonable or objective basis to believe a structural hazard exists, such as an expert examination or report, before a report can be made by the committee or representative to the employer, thereby triggering the reporting obligation to the MOL. It is not entirely clear whether a report to the employer by the committee must be based on consensus within the committee. For workplaces in which structural hazards are alleged, time will reveal whether this new obligation will increase the attendance of MOL engineers or if the MOL will address concerns by requiring employers to investigate and determine the adequacy of the structure in issue by utilizing the services of an expert at the employer’s expense.

The direct impetus for this amendment appears to have been the Algo Centre Mall roof collapse, which occurred in Elliot Lake, Ontario in 2012, and resulted in two fatalities and multiple injuries. Sadly, there have also been numerous roof collapses, and collapses of work platforms and other structures, at construction projects, mines, and industrial establishments. All suspect structures in all sectors would now be subject to such reporting.

In the Algo Mall matter, the roof collapse gave rise to multiple civil actions, as well as charges under the OHSA and Criminal Code against the engineer who declared the mall structurally sound in a report prepared weeks before the collapse. Within that report, the engineer had indicated that an investigation of the structure had revealed rusting and leakage, but concluded that the load carrying capabilities of the structure had not been detrimentally affected. While the engineer was ultimately acquitted of the charges of criminal negligence, and the OHSA charges were withdrawn, it appears the Legislature has taken additional steps to prevent similar events in the future by imposing proactive obligations upon employers to provide the MOL with notice of any structural issues identified within the workplace.

(b) Authority to introduce / amend new regulations: lastly, the amendments allow for the introduction of numerous additional regulations with respect to accident and incident notice requirements. Interestingly, to date, the provisions of sections 51, 52 and 53 of the OHSA and mandatory reporting requirements to the MOL contained therein, and relatively brief sector-specific regulations (Industrial Establishments, Construction Projects, Mines, Health Care) have driven the timing and content of prescribed reporting of accidents and incidents. It appears this is about to expand.

We anticipate there will be new notice requirements applicable to accidents occurring within additional prescribed locations. These have not as yet been identified or defined. New persons will apparently be required to report an accident and, again, the specifics have not been detailed. New dates or times at which certain reporting ought to be required may be set. Most significantly, it appears that the content and particulars of mandatory accident reports may be expanded, such that the current approach by employers to provide the required minimum, non-incriminating details, will need to be reassessed, or employed in new circumstances. This may bring accident reporting and the particulars required in same more into line with other Canadian jurisdictions, where there are more expansive minimum reports required.
Because the ability of the government to introduce such changes will be prescribed in regulations, not the OHSA, the government will not be required to follow the legislative process associated with the passage of a Bill when it chooses to introduce such changes. The Ontario government often, but does not always, provide a consultation opportunity or period. Consequently, such regulations may come into force immediately upon their introduction, and may provide employers with little time to adjust to any new obligations.

Concluding thoughts

While Bill 177 amended a small number of provisions in the OHSA, key provisions were amended in historic ways and are poised to have broad and significant implications. Increased and record-setting fines likely loom on the horizon. Historic matters believed to be long over may be actionable and an increasing number of workplace events are to be reported to the MOL for investigation.

Employers and their management and leaders would be well advised to ensure that the organization’s health and safety program is robust and well-documented, and that MOL investigations and workplace incidents are addressed in a manner consistent with the possibility of even more significant OHSA liability. Bill 177 has resulted in a seismic shift, the full effect of which will play out in the years to come.

This article was first published online by Mathews Dinsdale: http://www.mathewsdinsdale.com/seismic-shift-historic-changes-to-on-ohsa-take-effect-ohs-newsletter-dec-2017/

Cheryl A Edwards is a senior partner in Mathews Dinsdale’s Occupational Health and Safety (OHS) and Workers’ Compensation practice. A former Ontario OHS prosecutor, Cheryl has nearly 30 years of experience in advising on strategic and practical approaches for management of workplace safety issues including the complexities of OHS due diligence, contractor management, accident response strategies, and discipline for safety matters. She frequently advises on national and federal OHS programs, and has defended and represented employers, constructors, senior management, and supervisors in some of the most serious and complex health and safety trials, complaints, inquests and appeals; 647.777.8283; cedwards@mathewsdinsdale.com

Jeremy Warning practices in all areas of workplace law. He is a former health and safety prosecutor with special expertise in occupational health and safety matters. Jeremy provides proactive and strategic advice to organizations and management following serious workplace incidents, during regulatory inspections, and on sensitive health and safety issues. He is also an experienced advocate who defends charges under health and safety and other regulatory legislation, represents employers and management in appeals or reprisal proceedings before administrative tribunals, and appears as counsel during Coroner’s Inquests. Jeremy also designs and delivers training for organizations, officers, directors, supervisors and managers; 647.777.8284; jwarning@mathewsdinsdale.com

Deanah Shelly offers timely, strategic and pragmatic advice on a wide range of workplace issues. She has developed an expertise in assisting and defending provincial and federal employers in regulatory prosecutions pertaining to occupational health and safety, health care, municipal law, and the food and hospitality industry. Deanah regularly represents employers before labour relations officers and appeals officers when dealing with work refusals, reprisal complaints, and appeals of orders or directions issued by regulators; 416.869.2502, dshelly@mathewsdinsdale.com

Sydney Kruth is an Associate in Mathews Dinsdale’s Toronto office. She advises employers on a wide range of issues, including human rights and accommodation, labour relations, grievance arbitrations, and employment standards. Sydney was called to the Ontario Bar in 2016 after completing her articles with the firm; 647.776.2052, skruth@mathewsdinsdale.com; 647.776.2052, skruth@mathewsdinsdale.com