Individual liability for OHS breaches

Thomas Stefanik, head of the labour relations and employment law group at Torkin Manes LLP in Toronto,fields a question from a reader

QUESTION: Is there a threshold for individual liability for supervisors for breaches of health and safety standards in Ontario? What is the risk of individuals being charged and fined along with or instead of the company in the event of a workplace accident?

ANSWER: In the first place, it should be pointed out that it is not necessary for a workplace accident to have occurred before a corporation and a supervisor can be charged with a violation of the Occupational Health and Safety Act. 

Quite often, it is because of a workplace accident a Ministry of Labour inspector will attend at a workplace, review the circumstances  and decide a charge or charges will be laid. However, in some cases, such as a routine visit or inspection, charges may be laid without there having been an accident or injury.

Under the act, a supervisor is defined as a person who has charge of a workplace or authority over a worker. 

The act prescribes specific obligations on a supervisor, including an obligation to ensure that a worker works in the manner required by the act and regulations, and to ensure that a worker uses and wears protective equipment and clothing required by the act.

A supervisor is also required to advise a worker of any potential or actual danger, must provide a worker with instructions where so prescribed and must take every precaution reasonable in the circumstances for the protection of a worker.

Some of these obligations are also common to both employers and workers. The scheme of the act is multidimensional, with various obligations on employers, supervisors and workers. It is quite common for both an employer and a supervisor to be charged where a ministry inspector discovers an unsafe workplace or other conditions or omissions that are believed to constitute a violation of the act.

In Ontario, a supervisor, if charged and convicted, is liable to a fine of up to $25,000 per offence or to imprisonment for a term of not more than 12 months, or both.  These penalties are in addition and separate from any penalties imposed on a corporation. In other words, certain omissions or actions might result in convictions against both a corporation and a supervisor.

While it is rare for a supervisor to be sentenced to imprisonment, it is fairly common that supervisors who are convicted will face fines for a first offence somewhere in the area of $7,500 to $15,000.

The particular circumstances which affect a fine will depend on whether the supervisor has a prior conviction, the nature and extent of the injury to a worker, if any, and other factors a judge may feel appropriate.

Of course, supervisors have the same legal rights as corporations as a defendant. They are entitled to full disclosure of the ministry’s case if they are prosecuted, they are entitled to have the ministry prove its case and they are entitled to raise the defence of due diligence (although, like a corporation which raises that defence, they must prove it on the balance of probabilities).

In most cases where a supervisor is charged, the supervisor’s employer will also be charged under the act. In rare cases, the supervisor alone may be charged, but in such situations the ministry will have concluded the supervisor’s conduct was such that the supervisor appears to have acted in direct contravention of the employer’s directions or policies.

It is obviously in an employer’s interest to ensure it properly and fully trains its supervisors with respect to their obligations under the Occupational Health and Safety Act. This minimizes the risk of prosecutions and maximizes the ability of a supervisor to argue a due diligence defence under the act.

In situations where an employer and a supervisor are jointly charged, it is advisable for each to have separate representation. This avoids the possibility of a conflict of interest occurring at some point in the proceedings, and specifically avoids the situation where a supervisor may feel compelled to accept an offer to plead guilty with a penalty simply because his employer has elected to do so.

Thomas Stefanik is head of the labour relations and employment law group at Torkin Manes LLP in Toronto, advising employers with respect to new legislative developments and workplace disputes. He can be reached at [email protected] or (416) 777-5430.

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