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STRONGER, FAIRER ONTARIO ACT? Bill 177 Will Exponentially Increase Maximum Fines under OHSA and Broaden Mental Health Claims under WSIA

On November 14, 2017, the Ontario Government introduced Bill 177, the Stronger, Fairer Ontario Act (Budget Measures) 2017.  The Bill proposes to amend 45 separate statutes.  It is anticipated that this Bill will be passed before the end of the current session of the Legislature.  It is no understatement to say that this omnibus bill goes far beyond “budget measures”.

Somewhat overshadowed by the controversial Bill 148, this Bill proposes important amendments to the Occupational Health and Safety Act (“OHSA”) and the Workplace Safety and Insurance Act, 1997 (“WSIA”).

Occupational Health and Safety Act

Schedule 30 of Bill 177 will amend the OHSA.  The Schedule comes into force on the day that the Bill receives Royal Assent.

Section 66 of the OHSA sets out the penalties for conviction of an offence under the Act.  Currently, the maximum penalty for an individual is a fine of $25,000 or imprisonment of up to 12 months, or both.  Bill 177 will increase the maximum fine to $100,000.   Although this quantum of penalty has not been increased since 1990, it is difficult to imagine any individual who could sustain a fine of $100,000.  Serious offences by individuals have, in recent years, attracted penalties that include periods of incarceration under the OHSA as well as prosecution under the Criminal Code.

The current maximum fine for a corporation is $500,000.  Bill 177 will increase this maximum fine to $1.5 million.  Although the quantum of fine for a corporation has also not been increased since 1990, the scale of this increase is stunning.

In addition to the increases in maximum fines for offences, Bill 177 proposes to grant authority to the Deputy Minister of Labour to establish “directives” for inspectors respecting the interpretation, administration and enforcement of the OHSA and its regulations.  It is not yet clear what these directives will entail, but this is essentially a policy-making authority.

Bill 177 will also create additional obligations on a person to provide a notice to the Ministry of Labour under section 53 respecting accidents at project sites, mines and mining plants.  For example, a constructor now will be required to provide a notice of accident at a project site.

Finally, the one year limitation period required for the Crown to commence a prosecution will be extended from the date of the alleged default to the latter of one year from the date of violation and the date a Ministry of Labour Inspector becomes aware of the allegation violation.   This will certainly create uncertainty for workplace parties.

Workplace Safety and Insurance Act, 1997

In April 2017, the Government introduced Bill 127.  It was also an omnibus bill entitled the Stronger, Healthier Ontario Act (Budget Measures), 2017. 

In Schedule 33 of Bill 127, the WSIA was amended.  The most notable amendment at that time was the introduction of broader entitlement to benefits for mental stress.  S. 13(4) of the WSIA was amended to include entitlement for “chronic stress” in addition to “traumatic mental stress”.  The amendments in Bill 127 come into force on January 1, 2018.  Bill 127 did not include any transitional provisions for entitlement to chronic stress.

In late October 2017, the WSIB published new operational policies dealing with entitlement for chronic stress.  The legal test set out in policy requires a worker to demonstrate that the employment is the predominant contributor to the stress.  This threshold is contrast to the “significant contribution” test for all other areas of injury.

Schedule 45 of Bill 177 amends the WSIA.  Bill 177 includes transitional provisions for chronic stress entitlement.   These provisions provide the same entitlement for chronic stress to a worker who has an existing mental stress claim that is pending before the WSIB or WSIAT.  Workers who had not yet filed a claim for mental stress that occurred on or after April 29, 2014 will be permitted to file a claim for mental stress on or before July 1, 2018.  Of note, this provision does not distinguish between traumatic or chronic stress.  As a result, the amendments provide an avenue for close to four years of retroactivity.  Consider the possibility, for example, that a worker’s claim for workplace harassment has been resolved by the workplace parties only to now present itself once again under these transitional provisions.  The time frame aligns with experience rating liability for Schedule 1 employers as well as the full liability imposed on Schedule 2 employers.

Schedule 45 comes into force when the Bill receives royal assent, except that the transitional provisions for chronic stress entitlement will not come into force until at least January 1, 2018, consistent with the coming into force of Bill 127.