Amendments to the Occupational Health and Safety Act seemed to be the theme in late 2024 as the Working for Workers Five Act (Bill 190) and Working for Workers Six Act (Bill 229) received Royal Assent in October and December respectively.
In 2022 the government added aggravated sentencing factors and then increased the maximum corporate fines to $2,000,000 in 2023. However, they didn’t stop there in 2024. One of the more significant changes is the amendment to Part IX Offences and Penalties section 66 (2) where there has now been a minimum set fine amount of $500,000 for any corporation convicted of a second or subsequent offence that results in the death or serious injury of one or more workers in a two-year period.
The challenging part of this amendment is the wording “serious injury”. Many of you will be familiar with the definition of “critical injury” as defined in O.Reg. 834, however, the term serious injury is not defined in the OHSA and there has not been any case law establishing how it’s defined since the term’s introduction into the Act in the 2022 amendments.
What impact can this amendment have on an organization?
Ultimately, this amendment can put many organizations in jeopardy as typical sentencing criteria such as the size of the organization, economic viability, and the nature of harm as a result of the event won’t matter. These factors, along with other aggravating factors, are important as they have typically resulted in smaller organizations receiving lesser fines than a larger organization in a similar circumstance. This amendment could destroy a small business or severely impact how they operate.
Over the past few years, there have only been a handful of organizations that have received a fine amount over $500,000 and last year approximately 65% of the fine amounts were $100,000 or less. Arguably, if many of those organizations were to suffer a second or subsequent offence resulting in a fatality or a serious injury in the next two years a minimum fine of $500,000 could inevitably wipe out an organization.
As an employer, what should you do?
Ensure health and safety processes and systems focus on hazards and risk – Processes should focus on hazards and associated risk and the communication of each. Organizations that are risk aware benefit from improved decision making, better strategic planning by factoring in potential hazards and risks and a greater ability to mitigate risks proactively. Monitor, observe and inspect the workplace regularly, act on findings and communicate those actions.
Strengthen your workplace culture – Instil safety as a core value, foster positive attitudes, beliefs, and behaviours that demonstrate the importance of health and safety. Ensure management within the organization are visible, lead by example, actively participate in safety activities and foster open communication and feedback. Workplace incidents decrease when employers and employees are motivated to prioritize health and safety.
Strengthen policies and enforcement – Review and update policies and procedures to ensure they are practical and align with best practices. Hole leaders accountable for enforcing safe work practices as progressive disciplinary practices are important when it comes to curbing unsafe behaviour.
Conduct regular training and refreshers – Ensure mandatory health and safety training relevant to individual roles is completed. Refreshers in some cases may be mandatory, even if they are not legislated, as a reasonable precaution to ensure safety protocols and competencies are reinforced, refresher training can help to ensure appropriate levels of knowledge and skill.
Improve reporting and investigation – Encourage the prompt reporting of hazards and dangers without fear of reprisal. Workers need to feel that their concerns are heard and addressed. Conduct thorough investigations to prevent recurrences. In my experience, many investigations are not completed as well as they could be. When there are gaps in the investigative process (failure to secure internal documentation, failure to identify the root cause, lack of implementation of preventative measures)
Engage in proactive auditing – Scheduling third-party auditing can help to identify key gaps in your system. They can help your organization ensure compliance factors are met and identified gaps are addressed. This can help avoid fines, penalties and legal issues. Continuously review past violations for trending issues and keep records of safety activities to demonstrate due diligence efforts.
The introduction of a minimum $500,000 for repeat OHSA offences serves as a strong deterrent for non-compliance. Employers must take a proactive approach to workplace safety to avoid financial losses, reputational harm, and legal consequences. By fostering a strong safety culture, investing in training, and prioritizing compliance, organizations can protect their employees and their bottom line.
Taking action today will not only keep workers safe but also ensure long-term business success.
Trust MSW Safety
You can trust MSW Safety to provide you with cost-effective training solutions tailored to meet your organization’s unique health and safety needs.
To ask to learn more, contact us online or call 1-877-488-3329. Visit us 24/7 on the web at mswsafety.ca
Comments