Ever wonder how OHS fines are calculated? We did – and this is what we found out
In March, Nova Scotia concluded a consultation process regarding its workplace safety administrative penalty system.
An administrative penalty is a fine imposed by the government against an employer or individual for breaking workplace safety laws.
The Nova Scotia Department of Labour and Advanced Education wanted to hear the general public’s opinion on how effective changes made three years ago to the administrative penalty system had been.
“Ultimately, and probably most importantly, the issue was whether or not the strategy and the penalties were achieving the desired goal, which was to protect workers and improve health and safety in the workplaces,” says Leonard Preyra, Nova Scotia’s deputy minister of labour and advanced education. One of the most common concerns was whether fines accurately reflected the control of a given safety infraction.
“The issues revolved pretty much around the degree of responsibility that that person has for that event or that situation (and) the degree of harm that can be done in that situation,” Preyra says, adding that concern was also raised over, “whether or not this even has occurred before with that person or in that workplace.”
When a safety infraction occurs in Nova Scotia, an occupational health and safety inspector will issue a compliance order. An administrator at the Department of Labour and Advanced Education will then decide whether an administrative penalty should be given.
Currently, the maximum fine in the province for an employee is $500, $1,000 for a supervisor and $2,000 for an employer. Fines are not at set rates for specific infractions. The department has developed a guideline to help administrators determine the amount of the fine.
Fines are adjusted based on whether there was effort put into preventing the accident from occurring, whether there was any economic benefit as a result of the infraction to the person receiving the fine — for example, an employer did not provide personal protective equipment (PPE), saving on costs as a result — and whether there was any harm caused to anyone.
In Saskatchewan, fines are set at a maximum of $250 for employees, $400 for supervisors and range from $600 to $1,000 for employers, according to Ray Anthony, director of safety services at the occupational health and safety division of the Saskatchewan’s Ministry of Labour Relations and Workplace Safety.
“We have a thing in Saskatchewan called a ‘workplace responsibility system.’ It places duties on employers and supervisors and workers,” says Anthony. “Based on the degree of control in the workplace over matter regarding health and safety, the fines (escalate).”
Unlike Nova Scotia, Saskatchewan’s system is not an administrative penalty system, Anthony says.
“It’s a judicial system — it uses the court system that’s here in Saskatchewan that’s already established,” he says. “Essentially… you’re going to basically traffic court. You’re going to that level of court.”
At the provincial court, the individual or company being fined will have the opportunity to defend themselves before having the fine set by a judge.
Anthony makes it clear Saskatchewan’s workers’ compensation board does not set the fines given to those people who have made a safety infraction.
“The board doesn’t do any enforcement here,” he says. “The Ministry of Labour Relations Workplace Safety does, which is similar to Ontario.” In Ontario, when a person commits an offence under the Workplace Safety and Insurance Act (WSIA), the Workplace Safety and Insurance Board (WSIB) may lay charges and prosecute, according to Christine Arnott, WSIB public relations specialist.
The maximum an individual may be fined is $25,000, with the additional possibility of imprisonment for up to six months. For corporations, a fine of up to $100,000 may be issued.
Cases prosecuted by the WSIB are heard in Provincial Offences Court and, upon conviction, a judge determines the amount of the fine up to the maximum set under WSIA, Arnott says.
Fines are determined by legal precedents developed over 15 years of convictions and sentencing for WSIA offences, along with evidence the defendant presents and what the WSIB asks the court to order based on the specific circumstances of the case. “We ask for a fine, generally within the range set by precedent, but specifically based on the facts of the case taking into account any aggravating or mitigating circumstances,” Arnott says.
Nova Scotia is looking to rebrand its current penalty system.
“We’re looking at things like a much more graduated system,” Preyra says. “You know, providing education first and a warning and a penalty in some cases.”
The graduated system promotes workplace safety education prior to giving an order or administrative penalties, “To what extent did the employer, the supervisor take steps to educate the employees or the people in the workplace about a particular practice or a particular use of machinery or a general approach to workplace safety? That would be taken into account,” he says.
The system also identifies specific, high-risk situations that would result in automatic monetary fines, Preyra says.
“If someone is a repeat offender, then punishment would obviously be a higher consideration than someone who is a new employee,” he says. While Nova Scotia is undergoing its review, Preyra says he hopes employers don’t focus on the name administrative fine.
“The longer term goal is not punishment, the longer term goal is to improve workplace safety and to create conditions where the workplace is safer for everyone, particularly workers,” he says. “Punishment is a means to it, but punishment might not necessarily be the means you use to accomplish that goal.”
