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Last month, Ontario passed Bill 88, the Working for Workers Act, 2022. The Bill implements new legislation around the electronic monitoring of employees, and will also amend several pieces of existing legislation, including the Occupational Health and Safety Act. Under Schedule 4 of Bill 88, directors, officers, and corporations will face new obligations around the provision of naloxone kits to employees and will also face much steeper penalties for regulatory offences under the Act. In addition, the limitation period for prosecution under the Act will double.

Below, we provide an overview of the upcoming changes with respect to how occupational health and safety regulations will impact corporate officers and employers in the province.

Naloxone Kits Must be Made Available in Certain Workplaces

Naloxone kits, used to treat a person in the midst of an opioid overdose, will soon be required in many workplaces. As part of the changes under Bill 88, the Occupational Health and Safety Act will be amended to add section 25.2, which requires employers in workplaces considered higher risk for opioid overdoses to make naloxone kits available.

These requirements will apply to any employer who is aware, or ought reasonably to be aware, that there is an increased risk of an employee having an opioid overdose at the workplace. Workplaces that are high-risk by nature could include environments where opioids are present, such as pharmacies or medical practices, or places where drug use may be more common, including bars and nightclubs. Since opioids are commonly prescribed for chronic pain, workplaces where injuries are common, such as construction sites, will also be considered higher risk.

In addition to simply making kits available, they must be placed in the care of an employee who has been properly trained on recognizing the signs of an opioid overdose, and in the administration of naloxone. Naloxone is typically administered either by injection or through the nasal passages and will help to temporarily revive a person experiencing an overdose, allowing time for emergency responders to arrive.

The requirements for employers to provide naloxone kits will come into force on a day to be named by the Lieutenant Governor but affected employers should begin preparations as soon as possible to ensure they are ready.

Increased Penalties for Corporations and Individuals, Extension of Limitation Period

Under Bill 88, penalties for failure to comply with the Occupational Health and Safety Act are increasing significantly. Section 66(1) of the Act will be amended to increase the maximum penalty for an individual from $100,000 to $500,000. In addition, a new subsection will be added to implement specific penalties for directors and officers who fail to comply with s. 32 of the Act, which states:

Every director and every officer of a corporation shall take all reasonable care to ensure that the corporation complies with,

(a)  this Act and the regulations;

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

(c)  orders of the Minister.

Under the new section 66(2.1), any director or officer who is found to be in violation of section 32 will be guilty of an offence and subject to a fine of up to $1,500,000, and/or imprisonment for up to one year.

In determining the penalty for a director or officer under section 66(2.1), a new list of aggravating factors is also being added under section 66(2.2):

   1.  The offence resulted in the death, serious injury or illness of one or more workers.

   2.  The defendant committed the offence recklessly.

   3.  The defendant disregarded an order of an inspector.

   4.  The defendant was previously convicted of an offence under this or another Act.

   5.  The defendant has a record of prior non-compliance with this Act or the regulations.

   6.  The defendant lacks remorse.

   7.  There is an element of moral blameworthiness to the defendant’s conduct.

   8.  In committing the offence, the defendant was motivated by a desire to increase revenue or decrease costs.

   9.  After the commission of the offence, the defendant,

           i.  attempted to conceal the commission of the offence from the Ministry or other public authorities, or

          ii.  failed to co-operate with the Ministry or other public authorities.

10.  Any other circumstance that is prescribed as an aggravating factor.

Finally, the limitation period for filing charges under the Occupational Health and Safety Act will be doubled, from one year to two years from either the date of the last act or default upon with the charge is based or the day upon which an inspector became aware of the violation, whichever is later. The changes regarding the increased penalties and limitation period will commence as of July 1, 2022.

Due Diligence for Corporate Officers and Directors Regarding Occupational Health and Safety

Given the potential for onerous fines as well as imprisonment under the new regulations, and the extension of the time limitation for prosecution, directors, officers, and employers should ensure they are aware of, and in compliance with their responsibilities with respect to occupational health and safety.

They must maintain training for themselves and for employees, on the schedule prescribed under the Occupational Health and Safety Act, and must provide and maintain all required materials, including first aid kits and naloxone kits where applicable. In the event of a potential violation, the investigative powers of the Ministry of Labour can be detrimental to the workplace, even if no charges are laid. The Ministry has the authority to seize documents and other materials and interview employees at its discretion. The process can be highly disruptive to the workplace and to employee morale. If an employer, director, or officer is facing an investigation by the Ministry, it is best to connect with experienced legal counsel as soon as possible.

For Exceptional Regulatory Defence Contact Milosevic Fiske LLP 

If you are facing regulatory charges and require representation before a tribunal, agency, other administrative body, or in court, contact Milosevic Fiske LLP. We can help simplify what is otherwise highly complex litigation. Our experienced litigation lawyers help our clients see through the dense forest of even the most complicated administrative disputes. We excel at cutting through the underbrush and guiding clients to a creative, cost-effective solution.  Call us at 416-916-1387 or contact us online to learn more about how we can help.