By Norm Keith and Anil Nair
On Nov. 27, 2024, the Ontario government proposed an amendment to Ontario’s workplace safety legislation, introducing a severe mandatory minimum fine for a corporation convicted for a second time under the Occupational Health and Safety Act (OHSA).
This proposal, part of the Working for Workers Six Act, 2024 (Bill 229), is one of several changes that will adversely impact Ontario employers.
Despite this amendment, it is unclear why Bill 229 focuses on increasing after-the-fact punishment of employers rather than emphasizing before-the-fact prevention of worker injuries across all workplace stakeholders under the OHSA.
Specifically, the Bill 229 language reads as follows:
“… for a second or subsequent offence that results in the death or serious injury of one or more workers in a two-year period, the minimum fine that may be imposed is $500,000.”
We see several areas of concern if this were to become law in Ontario.
Judicial Discretion at Risk: Sentencing Limitations Under Bill 229
First, it prevents, restricts, and fetters judicial discretion in sentencing a corporation under the OHSA. The role of a trial justice in sentencing is to consider a multitude of aggravating and mitigating factors. For example, the Court of Appeal has held that post-incident improvements may be considered a mitigating factor in sentencing if they were not the subject of a compliance order. However, the imposition of the minimum will limit such judicial discretion to circumstances where the Crown is seeking a fine higher than the new mandatory minimum. Furthermore, we anticipate that the Bill 229 proposal may affect prosecution and defence counsel’s ability to negotiate a plea resolution based on all applicable aggravating and mitigating factors. This may reduce the number of cases resolved by guilty pleas, resulting in more cases proceeding to trial.
Undefined ‘Serious Injury’ Sparks Legal Ambiguity
Second, the use of the phrase “serious injury,” which is not defined in Bill 229 or the current OHSA, may cause confusion regarding the type of worker injury to which the amendment applies. A “serious injury” is presumptively different from the term “critical injury,” which is defined in an OHSA regulation. The term “serious injury” was introduced into the OHSA in 2022, amending the list of aggravating factors to be considered during sentencing after a conviction, without any statutory definition. To date, there is still no judicial interpretation of the phrase “serious injury.” All of this adds uncertainty to how Bill 229 will be applied.
Minor Infractions Could Trigger Major Penalties
Third, the Bill 229 proposed amendment imposes a minimum fine of $500,000 regardless of the factual context of the first conviction. For example, if the first conviction was for a minor incident or an administrative contravention of the OHSA, and the employer determined that a fine on a guilty plea was lower than the legal costs of going to trial, the employer may have chosen to plead guilty for sound business reasons. In this example, where that prior conviction is the springboard to a mandatory minimum $500,000 fine for a second conviction, the amendment appears to contradict the guidance of the Regulator’s Code of Practice, which provides for a commitment to treat Ontario businesses fairly and reasonably, especially in a challenging economy.
Timing Uncertainty: Retroactive or Prospective Enforcement?
Fourth, the timing of the application of this amendment has serious and unresolved uncertainty. It is unclear when the second conviction must take place for the Bill 229 minimum fine to be applied. Questions remain about whether it will apply based on the date of the alleged second offence or the actual date of the second conviction. Furthermore, it is similarly unclear whether Bill 229 (which is not yet law) will be enforced retroactively—i.e., when the first offence occurred before the law was passed—or whether it will only be applied prospectively. Bill 229 is unfortunately silent on these critical timing issues.
Strategic Decisions Now: How Employers Should Respond
Fifth, we anticipate that for affected employers, the proposed amendment could influence the decisions corporations charged as owners, constructors, and employers are making right now. For example, if there is an active investigation or pending OHSA charges arising from a workplace incident, these issues could impact the employer’s decision to plead guilty. Therefore, we strongly recommend obtaining immediate legal advice on how Bill 229 may affect the corporation’s future legal liability.
Finally, employers and businesses are invited to contact KPMG Law for insight, guidance, and assistance on how to improve workplace safety and enhance the prospects of successfully proving the defence of due diligence. Being prepared is critical to mitigating significant OHSA legal risk. To be forewarned is to be forearmed.
Anil Nair is an associate with KPMG Law.
