The Province of Ontario has jurisdiction to deal with matters of workplace safety. No issue can be of more importance as employers and workers alike prepare to return to work. A forerunner of the duties that will be required of all employers may perhaps be found in the duties previously imposed on workplaces that had previously been deemed to be “essential”.
The definition of “essential” has been expanded to accommodate Phase One of the provincial re-opening schedule. It is not known presently how the province will deal with similar regulations for the remaining steps to engage the economy, but it a fair presumption to anticipate that similar safety precautions will soon be in place to allow for full re-entry.
Obligations on the Persons Responsible for Safety
In addition to defining what is and what is not an essential business and hence allowed to open to the public, the Regulation also imposes a new and higher duty of care on these businesses. This may be the standard for many other businesses as the re-opening process gains additional momentum.
The first obligation imposed by the Regulation is to ensure that the business operates in compliance with the Occupational Health and Safety Act. More particularly, in addition, “the person responsible” for the business function has this duty:
The person responsible for a place of business that is open shall operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.
Keep in mind that the Ontario government has set out its specific guidelines for particular industry segments which are quite precise. These have now become legally enforceable. Critical to this issue is that the individual or individuals responsible for overseeing the workplace have a legal duty of compliance; not simply the corporation or business entity. This is a noticeable expansion of the duty that has traditionally been imposed by the statute upon employers.
Neither the Act nor the Regulation defines who is “the person responsible” but it would not take Perry Mason to determine that those in management or other oversight roles would likely fall within this term.
This is very important, as these people can be held personally responsible to ensure compliance with the Regulation and the “recommendations” relevant to the particular business segment. These two amendments will have profound repercussions on the liability of managers. This is well-intended, without doubt, to ensure the safety of the workplace and the people who are present, not just the employees.
Every business must ensure that its managerial staff are aware of this obligation and the particular “guidelines” set by the province relevant to specific industries. This may well be a moving target, and hence constant awareness is mandatory. It is not clear presently whether this term also includes federal “recommendations”.
Penalties for Non-Compliance
The Act allows fines to be imposed of up to $100,000 in the case of an individual manager for failure to adhere to an emergency order. This upper limit is increased to $500,000 for officers and directors. The penalties are severe, to be sure, and in addition to financial repercussions, violators may also face up to one year in prison.
Corporate entities are subject to fines of up to $10 million.
Much like the defence to a claim against a director for unpaid source deductions under the Income Tax Act, the defence of ‘due diligence’ is available to all potentially accused violators. A person who acted in good faith will likely not face such liability. It is likely that individuals will face charges in only the most extreme cases of wrongdoing, which is easy enough to say when it is not you who is the manager responsible. The moral of the story is evident. This is not the time to take these duties with a casual air.
Those persons responsible will be wise to show studious and rigorous attention to their duties under the statute and the regulation, not only for the sake of their personal liability but for the safety of their staff and clients, as well as the greater societal good.
Get Advice and Know Your Rights
The decision to re-open the economy raises complicated and important issues for employers and employees. As is now painfully evident, the rules of employment law are in a state of flux for good reason. The province clearly has its eye on its fears of a second wave of the virus as it cautiously re-starts the economic engines. All parties surely will share the common goal of public safety.
We remain by your side to provide real-time, practical insights into the law and your rights and obligations, whether you are an employer or employee. For advice on this issue and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
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