Canada: Directors And Officers In The Hot Seat: Maximum Fines Under The Occupational Health And Safety Act Now $1.5-million

On April 11, 2022, Bill 88, Ontario's Working for Workers Act, 2022 ("Bill 88") received Royal Assent. Bill 88 made significant amendments to the Occupational Health and Safety Act ("OHSA"), including substantially increasing the maximum penalties for corporate directors and officers for convictions under OHSA. The amendments came into force on July 1, 2022.

While Bill 88 made a number of changes to OHSA – including increasing the maximum fine amount for individuals from $100,000 to $500,000, extending the prosecutorial limitation period to two years, legislating aggravating factors to be considered on sentencing, and laying the groundwork for the use of "prescribed orders" on sentencing – one of the most noteworthy changes is the fifteen-fold increase in the maximum fine available for sentencing directors and officers of corporations for OHSA violations. Previously, directors and officers were subject to the maximum fine applicable to all individuals, including workers or supervisors ($100,000). The amendment adds a specific penalty provision for directors and officers, with a maximum fine of $1.5-million, which matches the maximum fine applicable to corporations themselves:

Section 32 of OHSA is the general provision establishing the duties of directors and officers of a corporation:

(a) this Act and the regulations;

(b) orders and requirements of inspectors and Directors; and

(c) orders of the Minister.²

Where there are multiple offences, the total fine could be multiples of the maximum. As noted above, the maximum fine is in addition to a possible 12 month jail term (which was unchanged by the amendments).

Directors and officers convicted of offences under OHSA now face significantly greater potential liability on sentencing. This change, which is part of Bill 88's apparent broader message that violations of OHSA are to be taken more seriously, seeks to distinguish directors and officers from other workplace parties by recognizing their leadership and decision-making role in workplace health and safety matters.³ Increased scrutiny of director and officer conduct should be expected going-forward.

Managing Liability: Due Diligence

Convictions under OHSA are regulatory offences, which are typically strict liability offences that penalize the absence of due diligence.⁴ Demonstrating "due diligence" – showing that a person took all reasonable care and executed the judgment, care, and prudence that a person would reasonably take under the circumstances is a complete defence to strict liability offences. This standard is already built into the primary OHSA provisions addressing workplace parties' duties, including the director and officer provision in section 32 ("...shall take all reasonable care to ensure...").⁵

This amendment reinforces the importance of ensuring that corporations and their directors and officers have developed and implemented appropriate systems to ensure that directors and officers are duly diligent in discharging their duties. What constitutes "due diligence", or "taking all reasonable care" depends on the circumstances and the workplace party's role. A duly diligent director or officer will not be expected to take the same steps as supervisors (i.e. directly overseeing and training workers) but must still take some role in ensuring workplace health and safety.

Each workplace is different, but generally, some markers of a strong system for ensuring director and officer due diligence include:

1. Directors and officers are familiar with OHSA, its regulations, and the corporation's obligations thereunder. While directors and officers may be familiar with the Act and its requirements generally (perhaps from prior industry experience or roles within the company), corporations might consider ensuring these leaders are also aware of how those requirements apply to the corporation's operations specifically. A basic orientation to the regulatory regime and the company's compliance procedures could be completed at on-boarding, and reviewed periodically or following significant regulatory or operational changes.
2. Directors and officers are regularly updated on significant health and safety issues or initiatives occurring at the company's operational level. A company might consider establishing a corporate reporting system through which significant incidents, regulator interactions (such as inspections revealing significant issues or refusals), new standard operating procedures, or health and safety committee recommendations are reported to directors and officers.
3. Significant issues are followed-up on by directors and officers. It is important that critical injuries, near-misses, health and safety-related discipline, regulatory orders or investigations, or other major health and safety issues are properly managed. Depending on the circumstances, intervention or oversight by a director or officer could be required.
4. The corporation's health and safety policies are reviewed periodically – either internally or with the assistance of an outside consultant. As regulatory requirements, industry best practices, and a company's operations change, the corporation's policies and practices may need to change as well.
5. Periodic internal compliance audits to ensure proper health and safety policy implementation. Regular, targeted compliance reviews may demonstrate that company leadership is proactively looking to identify and remedy any defects in health and safety compliance or identify opportunities to improve.
6. Good documentation practices. Proving that directors and officers took an appropriately active role in ensuring worker safety can be difficult without proper documentation. Companies might consider ensuring that minutes and agendas, training sessions, correspondence, audit results, consultant opinions, and any other records that demonstrate proactive steps by directors and officers to ensure worker safety are gathered, organized, and stored – to build a defence to any charges or to assist with a fulsome response to any regulatory investigations.

These are only some of the many steps that corporations and directors and officers might consider implementing to ensure they are taking all reasonable precautions to safeguard worker safety – which not only improves health and safety outcomes, but also establishes a defence in the event of any charges.

Footnotes

1. Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 66(2.1) ["OHSA"].

2. OHSA, s. 32.

3. Will Bouma, MPP, Third Reading of Bill 88: Working for Workers Act, Hansard Transcript, April 6, 2022.

4. Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30 at para 71.

5. OHSA, s. 32.

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