The Ontario government introduced the Labor for Workers Act 2022which contains significant proposed changes to the Occupational Health and Safety Act. The bill passed first reading in the Legislative Assembly of Ontario. If passed, larger fines could be imposed on individuals and executives, the statute of limitations for bringing charges would double, and a long list of sentencing factors would be drawn up for the courts to apply. In our respectful view, if some of these changes were to be enacted as drafted, there is a significant risk that the rights of defendants under the Charter would be jeopardized.
Changes to maximum fine amounts
Perhaps the most significant proposed change is a dramatic increase in the maximum potential fine for individuals from $100,000 to $500,000 per count. For officers and directors, the maximum fine would increase to $1,500,000 per count, a multiplication of 15, or the same maximum fine that can be imposed on corporations.
These changes suggest that the Ontario government would like the courts to be tougher on those convicted of workplace safety violations. Historically, fines imposed on individuals have been significantly lower than fines imposed on corporations. In fact, it has always been common for charges against individuals to be dropped if the company agrees to plead guilty and pay a fine.
The proposed increase in the maximum fine for officers and directors should put senior executives on notice that the government is signaling that fines should be significantly increased in prosecutions of corporate officers and directors. If the legislation passes, prosecutors can argue that the legislature wants executives to face similar fines as corporations.
Of course, it’s important to note that the maximum fines are reserved for what the courts call the “worst case, worst offender.” However, some courts have recently reported that an increase in maximum fines should lead to an increase in the range of sentences imposed (see R. against Hoyeck and R. v Gibson Energy ULC). Other courts have taken a different approach and have suggested that unless a minimum fine is introduced, an increase in the maximum fine does not necessarily require an increase in the fines imposed on all offenders (see R.v. Carrier Forest Products Ltd..)
Increase in the limitation period
The government is proposing that the limitation period for laying charges under the OHSA be reduced from 1 year to 2 years. This is a significant change, as it would give prosecutors significantly more time to determine whether charges should be brought. In our experience, it is not uncommon for prosecutors to file charges just before the statute of limitations expires. It remains to be seen whether it will become commonplace for charges to take longer to lay.
If charges take longer to be laid in practice, this can raise significant Charter concerns for defendants who may now face longer “inspections” before charges are laid. .
The OHSA gives ministry inspectors significant inspection powers to compel the production of documents and information, and even to order tests and reports on the causes of an accident by the responsible party. Once inspection “crosses the Rubicon” and becomes an “investigation” into the likely commission of an offence, inspectors can no longer use their broad powers of inspection and must instead rely on either voluntary cooperation, or by court order.
The question of when an inspector has “crossed the Rubicon” has been a controversial legal issue since the Ontario Court of Appeal’s landmark decision in Inco. Chillingly, recent BC case law has suggested that inspectors are subject to a lower standard of review under the Charter on the basis that employers have voluntarily entered a regulated field of activity. If these principles were adopted in Ontario and the statute of limitations doubled as proposed, ministry inspectors could have wide enough latitude to use regulatory inspection powers to demand information literally years after the accident.
The landmark decision of the Ontario Court of Appeal in R.v. Cotton Felts Ltd. sets out the factors courts follow when convicting companies for most regulatory violations, including workplace safety violations. The government proposes the following factors for courts to consider as “aggravating” (problems that point to a harsher sentence):
1. Violation resulted in the death, serious injury or illness of one or more workers
This has always been a factor that indicates a higher fine and has always been one of the biggest issues in sentencing.
2. The accused committed the offense recklessly.
Strict liability offenses do not have a mental element and therefore the prosecutor is usually only required to prove that the offense was committed. This factor may involve prosecutors calling evidence at a sentencing hearing (known as a “Gardiner“hearing) to prove this aggravating circumstance beyond a reasonable doubt.
3. The defendant ignored an order from an inspector.
This has always been an aggravating factor.
4. The defendant has already been found guilty of an offense under this law or another law.
A prior record isn’t surprisingly something the courts have considered in sentencing hearings.
5. The defendant has a record of prior non-compliance with this Act or the regulations.
This could significantly expand the scope of what is typically introduced in court and could lead to the Crown introducing compliance orders that have been issued and not appealed. If passed, employers will have another reason to consider challenging orders that are not legally valid.
6. The defendant has no remorse.
This factor is very problematic for us. Courts across Canada have consistently held that while remorse can be considered a mitigating factor in sentencing, the reverse is not true. The Ontario Court of Appeal recently stated that relying on the absence of remorse as an aggravating factor comes very close to punishing a defendant for exercising their constitutional right to make full answer and defence.
7. There is an element of moral culpability in the defendant’s conduct.
This factor is often invoked by courts in sentencing cases involving serious criminal charges. It may also require an expanded sentencing hearing to explore the contextual facts that gave rise to the commission of the offence.
8. In committing the offence, the defendant was motivated by a desire to increase his income or decrease his expenses.
This has always been an aggravating factor.
9. After the commission of the offence, the defendant,
- attempted to conceal the commission of the offense from the ministry or other public authorities
- Failure to notify the ministry of an accident when required to do so, disturbing the scene and obstructing an inspector are offenses that are regularly prosecuted by the ministry. Clearly, it would be inappropriate to punish employers for exercising their constitutional rights to make full answer and defense or for asserting a legally recognized privilege.
- did not cooperate with the ministry or other public authorities.
- This provision could be very problematic. Certainly, an employer who cooperates fully with the investigation should have the right to have this cooperation recognized by a court as a mitigating circumstance. However, a refusal to cooperate outside the context of a clear legal obligation to do so may be unconstitutional. Coupled with a doubling of the statute of limitations and potentially extended “inspections”, employers may effectively lose the right to remain silent altogether.
We hope that the government will carefully consider the consequences and potential implications of this wording when debating this bill.
Join us on March 28 for a free webinar, where we’ll discuss these proposed changes and ways for management and senior executives to respond to them.
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We hope the government will provide more details on how to assess the risk of an opioid overdose in a particular worker.
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