Occupational Health & Safety Act Charges

When the Ministry Arrives

An inspector from the Ministry of Labour, Immigration, Training and Skills Development does not need a warrant, an appointment, or a reason you agree with. Inspectors attend after a complaint, after a work refusal, as part of an enforcement blitz, and always after a critical injury or a death. They can enter, question workers, take photographs and samples, require records, and issue orders on the spot.

What happens in the next several hours usually determines how the file ends. The inspector’s field notes, the statements your supervisors give, the incident report written that afternoon, and the documents handed over without review become the prosecution’s case months later — because under the Occupational Health and Safety Act the prosecutor need not prove that anyone intended anything. It has to prove that a prescribed measure was not carried out. The defence is then yours to establish.

Mor Fisher LLP acts for constructors, employers, supervisors, directors and officers, and individual workers in Ministry of Labour investigations and prosecutions across Ontario — at the inspection stage, the order stage, and after charges are laid. For the broader framework, see Regulatory Offences & Provincial Prosecutions.

The Structure of OHSA Liability

Strict liability and the due diligence defence

OHSA offences are strict liability offences of the kind described in R v Sault Ste. Marie, [1978] 2 SCR 1299. The prosecutor proves the act — the guard was absent, the fall protection was not used, the trench was not shored. The defendant then bears the burden of proving, on a balance of probabilities, that it took all reasonable care.

Courts assess due diligence by asking, in substance: was the hazard foreseeable? Was there a written procedure addressing it? Were workers trained on it, and can you prove it? Was compliance supervised and enforced — or tolerated? Had the hazard generated prior orders or near misses? Were the time and resources allocated to the job consistent with doing it safely?

Every one of those questions is answered by documents. The defence is built in the years before the incident and assembled in the weeks after it.

Who can be charged

A single incident routinely generates charges against several defendants:

• The constructor — on a construction project, the constructor carries broad responsibility for the project as a whole, including the compliance of others on site.
• The employer — including the duty to ensure that the measures prescribed by the regulations are carried out, and the general duty to take every precaution reasonable in the circumstances for the protection of a worker.
• The owner of the workplace, in defined circumstances.
• The supervisor — a person who has charge of a workplace or authority over a worker, whether or not their job title says “supervisor.” Their duties include ensuring that workers work in the manner and with the protective devices required, advising workers of hazards, and taking every precaution reasonable in the circumstances.
• The worker, who owes duties of their own.
• Directors and officers, who owe a personal statutory duty to take all reasonable care to ensure that the corporation complies with the Act, the regulations, and the orders and requirements of inspectors.

The company’s interests and the individual’s can diverge immediately. If the corporation’s position is that it had a system and a supervisor departed from it, that supervisor needs their own lawyer. We flag this on day one.

R v Greater Sudbury and the reach of “employer”

In R v Greater Sudbury (City), 2023 SCC 28, the Supreme Court of Canada considered whether a municipality that had contracted out construction work could nonetheless be liable as an employer under the OHSA, where it had sent its own quality control inspectors to the project. The general principle owners need to take from it is that the employer duties are defined by the statute, and the degree of control a party exercised over the work is not what determines whether those duties attach. Control is relevant — but to due diligence, which is the defendant’s burden, rather than to the prosecutor’s case.

The significance for owners, developers, municipalities and general contractors is real: sending your own staff onto a site you have contracted out can bring you within the definition of employer, with the duties that follow. Contractual allocation of safety responsibility does not, on its own, answer the statutory question — though it does bear on due diligence, which is where owners in this position now fight.

Orders Versus Charges

Inspectors have two distinct tools, and clients confuse them.

Orders are compliance instruments: an order to comply with a provision, an order to stop work, an order requiring a professional engineer’s report, or a requirement that work not resume until conditions are met. They can be appealed to the Ontario Labour Relations Board, but only within a short window running from the date of the order — short enough that an order left in a site trailer can be unappealable by the time management sees it.

Orders are not findings of guilt, but they matter enormously to a later prosecution. An unappealed order is an uncontested record of the Ministry’s view of the hazard, and repeat orders on the same subject are the prosecutor’s best evidence that the risk was known and tolerated. Whether to appeal is a defence decision.

Charges are laid separately, by information under Part III of the Provincial Offences Act, and prosecuted in the Ontario Court of Justice. They typically arrive well after the incident — the investigation, the engineering analysis and the prosecutor’s review all take time. The limitation period is prescribed by the Act and runs from a defined event, not from the day the Ministry finishes its work. Whether a charge was laid in time is a live defence more often than employers expect.

Penalties

We do not quote fine figures from memory, and neither should anyone advising you. The maximums have moved more than once in recent years — most significantly through the Working for Workers amendments — and the figure that governs is the one in force when the offence occurred. What matters more than the number is how the regime is built.

A corporation cannot be imprisoned, so the fine is the entire sentence. The court has no other lever, corporate maximums under the Act are among the highest in Ontario’s regulatory system, and submissions turn on the defendant’s size and resources, the gravity of the harm, its enforcement history, and what it did after the incident.

Individuals face a different maximum, and imprisonment is available. A supervisor, director, officer or worker convicted under the Act is exposed to a fine in their own name and, in principle, to custody. Custody is not the usual outcome, but it is a real statutory possibility — and the personal conviction itself is often what the individual cares about most. Directors and officers are sentenced on a duty the Act imposes on them directly, so a fine already paid by the corporation does not extinguish their exposure.

A victim fine surcharge is added automatically. It is calculated on the fine imposed, it is not part of the negotiation, and neither the prosecutor nor the court will waive it. Any figure you treat as the cost of a resolution has to account for it.

Maximums apply per count, not per incident. A single event can produce an information with several counts against several defendants, each carrying its own maximum. How many counts survive, against whom, and how they are structured on a plea frequently matters more than the headline maximum.

The Act also directs courts to consider aggravating factors, drawn from the investigation record: prior orders on the same hazard, warnings not acted on, and the extent to which the risk was known. We can confirm the maximums applicable to your matter once we know the offence date and the charges as laid.

After a Critical Injury or Fatality

The Act imposes immediate obligations when a person is killed or critically injured at a workplace: notice to the Ministry, to the joint health and safety committee or health and safety representative, and to the union; a written report within a prescribed period; and a prohibition on disturbing the scene except to save life, relieve suffering, maintain essential services or prevent unnecessary damage. Both the notice and the report fall due while the workplace is still in crisis.

Preserving the scene and giving the notices are legal duties, not tactical choices. What is a choice is how the internal investigation is structured, who speaks to the Ministry and in what sequence, and how the written report is prepared — decisions made under time pressure and very difficult to unwind.

Where there has been a death, police and coroner investigations run alongside the Ministry’s — a situation we address on our Workplace Fatalities page.

WSIB and the OHSA Are Not the Same System

Workplace injury claims are administered by the WSIB; safety prosecutions are brought under the OHSA. They are separate regimes with separate obligations, forms and deadlines, and information given to one can find its way into the other. Ontario’s historic compensation bargain generally bars a worker from suing a covered employer in tort, subject to exceptions — which is why the prosecution, the WSIB claim and any coroner’s proceeding, not a civil suit, are usually where an employer’s exposure sits.

What We Do

• Attend at the workplace and deal with the inspector during an active investigation
• Advise on the scope of compelled production and respond to document requests through counsel
• Prepare supervisors and managers before they are interviewed
• Review and, where warranted, appeal inspector’s orders to the Ontario Labour Relations Board
• Structure privileged internal investigations, retaining engineers and hygienists through counsel
• Assemble and present the due diligence defence at trial
• Defend directors, officers and supervisors charged personally, separately from the corporation
• Negotiate resolutions addressing which defendants are convicted, how the facts are stated, and how the penalty is structured

Collateral Consequences

• Prequalification and bidding — owners and general contractors ask about convictions and orders
• Insurance and bonding — capacity and premiums respond to enforcement history
• Personal conviction — a supervisor or director carries it personally, with consequences for employment and, for regulated professionals, potential professional discipline
• Publicity — the Ministry publicizes convictions and penalties
• Escalation — where a death has occurred, the same facts can support criminal negligence charges

If an inspector has attended your workplace, issued an order, or asked for documents, get advice before you respond. Contact Mor Fisher LLP at 705-721-6642 or through our contact page — we act for corporations and for individually charged supervisors, directors and officers.