Northern Exposure

Big Brother Is Here: Ontario’s Integrated Approach to Enforcement

by Daniel Pugen
McCarthy Tetrault

Ontario’s new Regulatory Modernization Act, 2007 may sound like a bland piece of regulatory updating, but it actually contains significant changes to regulatory enforcement processes, including those in the employment field.

Passed by the Ontario legislature on May 17, 2007, and going into effect on January 17, 2008, this law will have real consequences for companies operating in Ontario.

The new law significantly affects the scope of government workplace investigations. It also affects the penalties and sentences for noncompliant employers by broadening the powers of all of the Ontario government’s enforcement branches, including the Ministry of Labour.

Most importantly, the Act permits government departments, or “ministries,” to:

  • Share information collected and observations and findings made in the course of their investigations;
  • Consider an employer’s compliance record including previous convictions and penalties imposed under other legislation when determining appropriate sentences for legislative violations; and
  • Make available to the public the information collected in the course of workplace investigations, including the employer’s compliance record.

Information and observation sharing
Imagine if a government inspector, examining compliance under one statute, could report to all other government agencies about the noncompliance he/she observes even if it is outside his/her own scope of authority. Imagine, then if the ministry receiving the information could use that information in its enforcement and inspection activities. This is now a reality.

For example, if an investigator inquiring into a human rights complaint observes an hours-of-work or overtime violation, he/she can record the violation and disclose it to the ministry responsible for hours of work. Someone looking into hours of work who observes an environmental issue of concern could report his/her observations to the Ministry of the Environment.

Accordingly, the Act significantly broadens the scope of workplace investigations and an employer’s exposure to regulatory charges.

Compliance record and sentencing
Imagine if upon sentencing for one regulatory offense, a judge could, in ordering a sentence, take into account all prior sentences under all other provincial regulatory statutes. Again, this is now permissible.

For a prior conviction to be used to potentially increase one’s penalty, the Act requires that the prior conviction be “relevant” to the current conviction. We expect judges to interpret “relevant” quite broadly given that one of the purposes of the Act is to ensure that regulatory convictions aren’t treated in isolation.

Therefore, for example, it may be possible that an employer may receive a substantial fine in relation to a first offense under health and safety laws if that company has a record of prior environmental offenses.

Publicizing of information
The enhanced ability of the Ontario government to publicize information collected during workplace investigations may magnify the risk of unwanted negative publicity for offenders. It’s now clear that the government can release information well beyond the simple fact of a conviction.

What can employers do?
We expect that the Ontario government will make robust use of these new powers. It has recently hired 200 new health and safety inspectors and increased fines in that area. To protect your business, you should consider steps such as these:

  • Appoint a company representative who will act as a liaison between the company and all government inspectors who may visit or otherwise investigate the workplace. Such an appointment should help ensure consistency with respect to the information and messaging going to various government inspectors.
  • Reassess all current or possible government inspections occurring in your workplaces and reconsider your strategy. The stakes have just gone up!
  • Assess all allegations of noncompliance, court and administrative tribunal proceedings, and the settlement or litigation of these proceedings for their potential impact on proceedings under other laws.