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Halfway There – No More Living on a Prayer: Increasing Proactivity in OHSA Prosecutions by the Ministry of Labour, Immigration, Training and Skills Development

Halfway There – No More Living on a Prayer: Increasing Proactivity in OHSA Prosecutions by the Ministry of Labour, Immigration, Training and Skills Development

By:

Mann Lawyers

Posted July 25, 2023

As discussed here, here, and here, breaching the “Offences” provisions in Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) can result in hefty fines against individuals and corporations, and even jail time for individual defendants, pursuant to Provincial Offences Act (“POA”) prosecutions (“OHSA Charges”). As further discussed here, available defences to OHSA Charges are minimal, because they are known as “Strict Liability Offences.”

The large majority of OHSA Charges happen after a significant workplace accident, most commonly when workers are injured and/or killed due to the accident. OHSA Charges are predominantly accident-reactive in their application. Importantly, where the employer involved in these accidents is a corporation, any fines ordered against such an employer pursuant to OHSA Charges are almost always against the corporation themselves – directors and officers of the corporation are rarely fined.

Investigations by Ontario’s Ministry of Labour, Immigration, Training and Skills Development (“MLITSD”) – due to anonymous complaints or otherwise – usually result in a compliance order; fines and/or charges are very rare. However, as part of much broader shifting policy directives regarding safety at work over recent years, the OHSA has been amended many times. These amendments include, but are not limited to, the increase of potential fines against corporations, the increase of potential jail terms against individuals, the lengthening of limitation periods for OHSA Charges, and generally strengthening the enforcement mechanisms found within the statute. More recently, it seems that these broader shifts may be creating tangible differences in how the OHSA is enforced within individual workplace safety investigations.

THS Industries Ltd.

This shift can be seen in the January 17, 2023, OHSA Charges conviction of THS Industries Ltd. (“THS”) and their CEO and director, Xiaoye He (“Xiaoye”). As part of this conviction, THS as an employer was fined $85,000 and Xiaoye as a director was fined $15,000. There was also a 25% victim surcharge fine against both parties. The convictions followed a guilty plea by THS and Xiaoye for failing to take all reasonable care to ensure proper equipment and materials were provided for nail-maker machines on THS’s premises.

The summary of facts regarding these charges were as follows:

  1. On December 22, 2021, MLITSD occupational health and safety inspectors responded to an anonymous complaint that workers at THS’s premises were bypassing machine guarding devices on nail-maker machines.
  2. The MLITSD inspectors did a thorough investigation of THS’s premises on this date and found unfixed access gates on several machines, amongst many other breaches of the OHSA and its regulations. The inspectors even witnessed one worker inside an open access gate of a running machine.
  3. MLITSD inspectors found that the guards on a significant number of nail-maker machines were unfixed on purpose.
  4. The OHSA breaches could have resulted in serious injuries.
  5. There was no workplace accident prompting the investigation.
  6. THS had been convicted of OHSA violations three times in the previous six years.

Conclusion

THS’s conduct was notably problematic within the context of the OHSA, and they had multiple previous convictions in recent years – both of these are known aggravating factors. Therefore, it is easy to understand why the MLITSD laid OHSA Charges without the presence of a workplace accident. However, many companies have been in similar situations to THS without OHSA Charges laid against them and most definitely not against the directors of the corporation. The THS and Xiaoye convictions represent an important warning to Ontario employers, especially to those in manufacturing industries.

It is still difficult to determine with certainty whether the MLITSD will continue to increase their proactivity in laying OHSA Charges. However, within the shifting policy dynamics mentioned above, it is a fair assumption to make that it is only a matter of time before workplace investigations will increasingly lead to such charges being laid against corporations and their directors with or without the presence of a workplace accident.

When looking to ensure one’s company is abiding by OHSA standards, it is crucial to find counsel well-versed in both guiding employers in compliance strategies and litigating enforcement orders and OHSA Charges.

This blog post was written by Filip Szadurski, a member of our Employment Law and Commercial Litigation teams.  He can be reached at 613-369-0382 or at filip.szadurski@mannlawyers.com.

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Filip Szadurski

Filip Szadurski

I focus my practice on Employment, Labour, and Human Rights Law, while also functioning as an active member of the firm’s Commercial Litigation and Environmental Law groups. I graduated from Osgoode Hall Law School in 2020 and was called to the Ontario Bar in 2021. I have a passion for helping employers and employees with their litigation needs at any level of court or tribunal. I also pride myself on supporting employers and executive employees with the review of their employment contracts, compensation packages, and workplace policies with the goal of avoiding unnecessary future litigation. Additionally, I have a Provincial Offences Act defence practice, assist senior management employees and employers through their workplace investigations, and am a trained workplace investigator. My investigation work includes provincially controlled workplaces subject to the Employment Standards Act and Occupational Health and Safety Act; federal domains subject to the Canada Labour Code; and, specialized agencies, such as those subject to the Police Services... Read More

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