Canada: Who Is Responsible For This?! Ontario Puts Legal Obligations On Persons Responsible For Workplaces Open During Covid-19

Workplace health and safety legislation in all of Canada's jurisdictions place obligations on employers to take reasonable steps to preserve the safety of their workers.  A new standard of care is being introduced for workplaces deemed "essential" under the Emergency Management and Civil Protection Act ("EMCPA"), and their respective managers.  Ontario Regulation 82/20 deals with the closure of places of non-essential businesses, and imposes additional legal obligations on persons responsible for a place of business that is open.  The two overriding requirements that apply to all open business are:

Compliance

1.  (1) The person responsible for a place of business that is open shall ensure that the business operates in accordance with all applicable laws, including the Occupational Health and Safety Act and the regulations made under it.

(2) 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.

Specific obligations apply to businesses in particular sectors, including retail sale or rentals, boarding kennels and stables, golf courses and driving ranges, short term accommodation rentals, seasonal campgrounds, marinas, boat clubs, sports facilities, athletic training or competition facilities, and horse racing tracks.  As more of Ontario's economy opens, businesses need to ensure to remain apprised of their particular obligations, either generally or specifically as provided by legislation.

Employers in Ontario have normally been responsible to comply with the provisions of the Occupational Health and Safety Act, including by employing competent managers and supervisors.  The new provisions under the Regulation significantly expand the scope of responsibility, including by requiring the "person responsible" in a place of business to ensure compliance with "all applicable laws".  For example, the "person responsible", which is not a defined term, is now personally liable to ensure compliance with the Occupational Health and Safety Act requirement that reasonable steps be taken for the protection of workers' safety.

Similarly, advice and recommendations from public health authorities, which are normally just that: advice and recommendations, now have the authority of law.  It is now mandatory that all persons responsible for an open business in Ontario to ensure that the business is operating in compliance with provincial, local, and possibly federal public health officials.

And with that added responsibility comes the threat of rather significant penalties for non-compliance with emergency orders made under the EMPCA.  Individuals can be fined up to $100,000.00, which increases to $500,000 for directors and officers.  One year imprisonment terms for individuals are also provided by the legislation.  Corporations on the other hand can be fined up to ten million dollars for an offence.

It is important to note however, that individual managers and supervisors will not be strictly held liable for every infraction.  The EMPCA has a built-in "defence" similar to due diligence under the Occupational Health and Safety Act.  It provides that an individual who acted "in good faith in the exercise or performance or the intended exercise or performance of any power or duty" under the Act will not face sanction.

In order to be able to show good faith performance under the law, a person responsible for an open business in Ontario will need to demonstrate familiarity with the Occupational Health and Safety Act, applicable regulations under the EMPCA, and all applicable advice and recommendations from Public Health officials – which are likely to change as Ontario progresses through the Framework for Reopening Our Province.