In Bill 88, “Working for Workers Act, 2022”, the Ontario legislature has enacted noteworthy amendments to the sentencing provisions of the  Occupational Health and Safety Act (OHSA) that will come into force on July 1, 2022.

Fines for convicted individuals have been increased from a maximum of $100,000 to $500,000. An exception is for officers and directors convicted of having breached the s.32 statutory duty of care who will be exposed instead to a maximum fine of $1.5 million. The available jail time remains unchanged at one year. Maximum fines for corporate offenders also remain unchanged from $1.5 million.

The Bill also expands the limitation period for commencing a prosecution from one to two years, starting either from the alleged offence date, or the date upon which an inspector becomes aware of the alleged offence, whichever is later.

Also included are ten factors that the courts must consider as aggravating for the purposes of sentencing:

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 attempted to conceal the commission of the offence from the Ministry or other public authorities, or failed to co-operate with the Ministry or other public authorities.

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

Most of these factors are already applied by the courts in sentencing matters. But three are problematic:

Factor 4:

It follows s.15 of the Regulatory Modernization Act (RMA) enacted in 2007 by the legislature. Section 15 permits the Crown to request that a sentencing court impose a more severe penalty for convictions under a provincial statute when the Crown is of the opinion that a previous conviction under another provincial statute is relevant as an aggravating factor to the determination of the appropriate penalty for the current conviction. It was applied in at least one reported OHSA prosecution, Ontario (Ministry of Labour) v. J.R. Contracting Services et al. There the employer and two individuals were convicted for offences arising from an employee’s serious workplace injury while he was engaged in the removal of waste shingles from a roof. These appeared to be the first convictions for all three defendants under the OHSA. However, in sentencing one of the individuals, the court applied section 15 of the RMA, accepting the Crown’s submission that the defendant’s previous convictions under the Environmental Protection Act (EPA) (all occurring within the context of waste management or removal) were aggravating factors requiring she serve a continuous jail sentence and sentenced her to 45 days.

Factor 4 goes farther than the RMA, requiring a sentencing court to apply as an aggravating factor one or more convictions under other provincial legislation when alleged and, unless admitted, proved by the Crown. Left unfettered, however, is the discretion of the Crown to decide as to which prior convictions, if any, should be alleged for the purposes of sentencing.

Factor 7:

All offences contrary to the OHSA, as offences of strict liability, require the defendant’s moral blameworthiness in the form of mere negligence. It is a presumed element rebuttable on the civil standard by the defendant if it establishes that it took all reasonable care to avoid the contravention at issue. If successful, in law its acquittal is required. On its face, this factor would cause the courts to consider all findings of guilt to be an aggravating factor. To avoid that absurdity, one would expect that the courts will read into “moral blameworthiness” something greater than mere negligence, such as a marked departure from the standard of care.

Factor 9:

Every workplace is obligated to comply with reasonable OHSA inspections. In the result, factor 9 makes sense so long as it is interpreted to apply to bona fide inspections under the OHSA. The duty to co-operate, however, does not apply when the workplace is under investigation by the MOL for one or more offences under the OHSA. In that situation, the employer and its employees have both Charter and common law rights on which they can lawfully rely in withholding their cooperation. Absent being read down to apply to inspections, factor 9 conflates inspections with investigations, risking the more serious punishment of convicted defendants who lawfully refused their cooperation to the MOL during the course of the investigation.

This is complicated by the fact that many MOL inspectors attempt to compel an employer’s cooperation during an investigation by intentionally conflating the inspection/investigation dichotomy. Unlawfully compelled co-operation, whether in the form of a whip during the investigation stage, or a carrot dangled at the sentencing stage, has been roundly criticized by our courts. It is no different than a defendant who pleads not guilty triggering a trial. Every defendant has the Charter right to a trial and, if convicted, none can be “taxed” in the form of more severe punishment for exercising that right. The path to a conviction at the sentencing stage is only relevant when the defendant has pleaded or admitted is guilt, which depending on the timing within the process, can be rightfully equated to remorse and applied as a mitigating factor.