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Company fined $125,000 for failing to isolate workers during COVID-19 outbreak

On April 11, 2022, the Government of Ontario passed Bill 88, the Working for Workers Act, 2022, which amended the Occupational Health and Safety Act (OHSA) to substantially increase penalties for senior officials of a corporation who do not take reasonable care to ensure that the corporation complies with the OHSA.

On conviction, Bill 88 raises maximum fines under the OHSA from $100,000 to $1.5 million for senior officials of the corporation, or imprisonment for a term of not more than 12 months, or both.

The recent amendments suggest that health and safety violations in the workplace may be met with more serious consequences than before, as evidenced by a recent Ontario Court of Justice (OCJ) decision to fine a company $125,000 for a COVID-19 related violation. The court found that the company failed to isolate workers following a COVID-19 outbreak. This marks the first prosecution of a COVID-19 related offence under the OHSA.

Background

The employer, Scotlynn Sweetpac Growers, is a farming company based in Vittoria, Ont., which employs about 220 agricultural workers. Scotlynn, like other agricultural operations, was deemed “essential” to the food supply in Ontario and was permitted to continue operating amid the provincially mandated lockdowns in response to the COVID-19 pandemic.

At the end of May 2020, a COVID-19 outbreak was declared at Scotlynn, where the regional health unit revealed 196 positive cases of COVID-19. Although the vast majority of those workers were asymptomatic, three of them had to be hospitalized, and one of them died as a result of the virus. Prior to being hospitalized, the deceased worker displayed COVID-19 symptoms, but was never isolated from the other workers.

The Ministry of Labour, Training and Skills Development investigated the outbreak at Scotlynn, and, amongst other charges, alleged that Scotlynn had contravened section 25(2)(h) of the OHSA.

Decision

The OCJ stated that Scotlynn did not take the “reasonable precaution of isolating COVID-19 symptomatic workers” to protect other employees, in violation of section 25(2)(h) of the OHSA.

Additionally, the OCJ found that Scotlynn “did not consistently implement and enforce screening for COVID-19 symptoms” in the workplace, and it was determined that the company permitted workers to regulate themselves when it came to the use of facemasks. Consequently, the OCJ issued a $125,000 fine, as well as a 25 per cent victim fine surcharge as required by the Provincial Offences Act.

Bottom line

The fine imposed on Scotlynn ranks amongst the highest penalties ever imposed under the OHSA for faltering in workplace COVID-19 prevention measures.

Notably, it is highly likely that the penalty would have been even higher, but for the uncertainty regarding COVID-19 in or around mid-2020.

Knowledge about COVID-19 and the prevention of transmission has grown exponentially, and public health authorities have endorsed numerous measures to curb transmission of the virus. As a result, employers may find a less sympathetic reception from the courts should preventative measures not be followed.

It is strongly recommended that all employers implement a meaningful review of their health and safety policies and training, in addition to any complaints procedure, should a serious workplace incident occur.

John Hyde is the managing partner at Hyde HR Law in Toronto. He advises management on all aspects of employment and labour law, including representation before administrative tribunals, collective agreement negotiation, arbitrations, wrongful dismissal defence and human rights.