Businesses are subject to a number of regulatory laws governing a wide variety of issues, from environmental controls to securities regulation, to health and safety obligations. Businesses that fail to meet their obligations under these various regulations may be subjected to significant fines under the applicable legislation. In addition, individual owners can also be held personally liable for fines or even sentenced to jail time for breaching their obligations. 

With respect to workplace health and safety, employers are required under the Occupational Health and Safety Act to provide workers with a safe workplace that is free of hazards. When employers become aware of any potential safety issues, they have a responsibility to investigate the matter and take remedial action when appropriate. 

Last summer, migrant farm operations located throughout Ontario, generated headlines as concerns arose over working conditions for migrant workers in the midst of the pandemic. One farm, in particular, drew attention after an outbreak infected over 200 workers, one of whom passed away due to COVID-19. After a year-long investigation into claims about the farm’s practices with respect to migrant workers, the province has now levied charges against both the farm and its owner. 

In light of the ongoing workplace safety concerns owing to the pandemic, the province has recently increased the number of health and safety inspectors, resulting in the largest number of inspectors in the province’s history. 

Employer Obligations Under the Occupational Health and Safety Act

Employers are obligated to take “every reasonable precaution” to protect workers from any potential hazards or other threats to their safety. With respect to COVID-19, in particular, employers have additional obligations, as follows:

• Report any employees who test positive for COVID-19 and ask any other employees who may have come into contact with the affected worker to self-isolate at home;
• Close any affected areas of the workplace until they can be thoroughly disinfected;
• Report any confirmed illness as a result of workplace exposure to the following parties:
  • The Ministry of Labour, Training, and Skills Development;
  • The Workplace Safety and Insurance Board;
  • The employer’s joint health and safety committee; and
  • The worker’s trade union, if applicable. 

In addition, employers must adhere to public health recommendations to keep employees safe and minimize the risk of infection. These measures may include:

• Mandating face coverings in the workplace;
• Making adjustments to the workplace to allow for social distancing when possible;
• Implementing a vaccination policy;
• Making an effort to accommodate employees who cannot be vaccinated by providing onsite testing, additional personal protective equipment, or allowing for remote work arrangements where possible.

The Ministry of Labour, Training and Skills Development oversees health and safety matters under the Act. Ministry inspectors have the ability to investigate and visit workplaces to provide information, investigate health and safety claims, and file regulatory charges against an employer when they deem necessary.

Migrant Farms Pose Unique Safety Challenges for Employers

Migrant farms, which rely on short-term workers from outside of Canada to meet employment needs during the spring and summer months, are particularly challenged when it comes to providing a safe workplace. Employers are required to provide housing for migrant workers, which often results in multiple workers sharing relatively small quarters, making social distancing or self-isolation difficult or even impossible. 

The spring and summer of 2020 was a particularly challenging time for farm operators and workers. By the end of August, over 1300 migrant workers in Ontario had contracted COVID-19, and three individuals had died as a result. Despite the concerns relating to the pandemic, many workers opted to remain at the farms, because their families at home depended on their summer earnings to help get them through the rest of the year. 

Farm and Owner Each Facing Regulatory Charges

One farm, in particular, Scotlynn Sweetpac Growers Inc., was hit particularly hard in the summer of 2020, with over 200 workers contracting COVID-19. One worker, Juan Lopez Chaparro, unfortunately, died as a result of infection. At the time, another worker spoke out about his concerns about the living conditions at the farm which he claimed did not allow for distancing or self-isolation, even after his colleague died. Soon after, he was fired. He has since won a judgment for lost wages and damages, totaling $25,000. 

In the months since last summer, the Ministry of Labour, Training, and Skills Development has completed an investigation of the farm and its owner. At the end of September, the Ministry filed 10 charges for violating the Occupational Health and Safety Act against both the business as well as the individual owner. The Ministry claimed the business failed to take every reasonable precaution to protect workers. Specifically, the employer failed to do the following:

• Inform workers of the need to wear masks or other face coverings;
• Provide workers with access to hand hygiene facilities;
• Properly clean and disinfect high-touch surfaces; and
• Provide vulnerable workers or those who showed symptoms of COVID-19 with instructions to self-isolate.

Both the owner and the business could be facing severe penalties if the charges are proven. The Occupational Health and Safety Act provides for fines of up to $1.5 million and individuals can face a jail sentence of up to one year.

Province Added Over 100 New Health and Safety Inspectors

As workplace safety concerns continue to be ongoing throughout the province, the Government of Ontario recently announced it had added more than 100 new health and safety inspectors. The new group of inspectors will be focused on visiting high-risk environments including construction sites, industrial workplaces, and healthcare settings to provide educational tools and offer support. 

According to Monte McNaughton, the Minister of Labour, Training, and Skills Development, the goal of the increase is to keep workers safe while also supporting business owners and allowing them to remain open during this challenging time. 

Contact Milosevic & Associates in Toronto for Experienced Regulatory Defence

If you are facing regulatory charges and require representation before a tribunal, or other administrative body, or in court, contact the litigation lawyers at Milosevic & Associates in Toronto. We provide exceptional representation for business owners and employers in highly complex litigation and administrative disputes. To discuss how we can help, contact us online or by phone at 416-916-1387.