BILL 160: The Key Changes

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Bill 160 proposes a series of changes to the Ontario OHS Act and WSI Act. Here’s a summary, analysis and projected effectiveness date of each one.

8 Most Important Changes in Bill 160

Bill 160 contains 29 proposed changes to the laws. We believe that the 8 that most affect you, your company and its OHS program are, in order:

  • MOL Authority to Adopt New Training Requirements for Workers and Supervisors (See #4 below);
  • MOL Authority to Adopt New OHS Inspection Rules and Policies (See #3);
  • Expanded Protections for Workers that File Reprisal Complaints, i.e., claim they were disciplined or unfavourably treated because they raised concerns about safety, served on a JHSC or exercised other rights under the OHS laws (See #13-14);
  • MOL Authority to Revise JHSC Certification Requirements (See #5);
  • Mandatory Training for Health and Safety Representatives (See #6);
  • New Recommendation Powers of JHSC Co-Chairs (See #7); and
  •  Establishment of New Prevention Council and Chief Prevention Officer within MOL (See #8).

A Summary of Each Key Item

Here’s a summary and analysis of all the key items contained in the Bill. The items are listed in the order they appear in the Bill, not by priority. We’ve colour-coded each item to indicate its potential impact on you and your OHS program:

  • Red—Significant impact on employers and OHS programs;
  • Orange—Indirect or long-term impact on employers and OHS programs; and
  • Blue—Little to no impact on employers and OHS programs.

Note: Provisions 1 to 18 are proposed changes to the OHS Act; provisions 19 to 28 are proposed changes to the Workplace Safety and Insurance Act, 1997.


Provision 1: Changes to Definitions

Change: Revise definition of a “certified member” of the Joint Health and Safety Committee to reflect new certification requirements (See #5 below). It would also add 3 new definitions to the Act—“Building Code,” “Office of the Employer Adviser” and “Office of the Worker Adviser.”

Analysis: Housekeeping only.

Likely Effective Date: Revised “certified member” definition would take effect on April 1, 2012, unless proclaimed earlier by the Lt. Governor. The other new definitions would take effect when Bill is proclaimed—by June 2011 in all likelihood.

Provision 2: New MOL Administrative Powers

Change: Specifies that MOL is responsible for administering OHS Act and that powers and duties in so doing include: i. Promoting public awareness of health and safety; ii. Educating employers, workers and others about health and safety; iii. Fostering commitment to health and safety by employers, workers and others; and iv. Making grants to support health and safety

Analysis: This is a significant change to the OHS system and bureaucracy and one of the key recommendations of the Dean Report but one whose impact on employers is likely to be long term and remote.

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

Provision 3: New MOL Inspection Powers

Change: MOL Director of inspections may set written policies on interpretation, administration and enforcement of OHS Act.  

Analysis: This is one of the most important changes for employers, especially in construction and other industries that employ “vulnerable workers” because it gives the MOL the authority to adopt a more aggressive inspection regime, e.g., after-hours and weekend inspections. It also gives the MOL the authority to clean up abuses in inspection, ensure consistency among inspectors and adopt an enforcement regime that promotes compliance as much as it concentrates on “gotcha” and catching employers doing something wrong.

Likely Effective Date: When Bill is proclaimed—in all likelihood by June 2011. Once authority is established, the MOL will have to actually issue written inspection policies furnishing the crucial details.

Provision 4: New MOL Authority on Training

Change: Gives MOL authority to establish standards for training programs and trainers. Also gives MOL power to demand training records to verify successful completion of training programs.  

Analysis: Arguably the most important part of Bill 160 (as far as impact on employers and OHS programs is concerned), this provision would give the MOL the authority to adopt the sweeping changes in training requirements recommended in the Dean Report, including:

  • Mandatory entry-level safety and awareness training for workers;
  • Mandatory safety and awareness training for front line supervisors;
  • Mandatory safety training for construction and other high risk industries;
  • Mandatory safety training for fall protection and other high risk operations.

Likely Effective Date: When Bill is proclaimed—in all likelihood by June 2011. But once the authority is established, the MOL will have to adopt regulations setting out the details of the training requirements and programs—which will likely require a minimum of 6 months.

Provision 5: Revised JHSC Certification Requirements

Change: Gives MOL authority to establish training and other certification requirements for JHSC members and actually grant certification. Members certified under current requirements would be grandfathered and not have to be certified under the new rules.  

Analysis: Revision of JHSC certification was actually an issue the Dean Commission deliberately decided not to address in its report, instead deferring to the WSIB panel which has been reviewing the issue.

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor. MOL will then have to exercise its new authority by drafting new regulations setting out the revised certification requirements.

Provision 6: Mandatory Training for Health & Safety Representatives (HSRs)

Change: Adds new Section 8(5.1) requiring employers or constructors to ensure that HSRs  receive training enabling them to “effectively exercise the powers and perform the duties” of an HSR.

New Sec. 8(5.3) stipulates that individuals are deemed at work and thus entitled to be paid for time they spend receiving training to be an HSR.   

Analysis: Current OHS law requires training for JHSC members but not HSRs. The Bill would also give the MOL the authority to establish regulations exempting classes of workplaces from HSR training requirements (See #18 below).

Likely Effective Date: Upon proclamation by the Lt. Governor (HSR training is 1 of 8 items requiring individual proclamation separate from proclamation of the actual Bill).

Provision 7: Powers of JHSC Co-Chairs

Change: Adds new Section 9(19.1) giving either co-chair of the JHSC power to make written recommendations to the employer or constructor in cases of deadlock among JHSC members. New Sec. 9(19.2) lists the elements a co-chair recommendation must include:

  • The co-chair’s recommendation(s);
  • Summary of position of members supporting the recommendation;
  • Summary of positions of members opposing the recommendation;
  • Information about how the JHSC tried to reach consensus.

Analysis: This is an important change because it would trigger the employer’s (or constructor’s) requirement to respond to the recommendation within 21 days.

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

Provision 8: Establishment of Prevention Council and Chief Prevention Officer

Change: Add new Section 22.2 (under Part II.1) of the Act  requiring the MOL to establish a Prevention Council made up of employers, workers and other OHS experts to provide advice on appointment of Chief Prevention Officer (CPO) and then, once that person is in place, help the CPO carry out his or her duties.

Add new Section 22.3 requiring the MOL to appoint a CPO for a term of up to 5 years to develop OHS strategy which will be published, prepare annual reports on OHS, provide advice on injury prevention, consider changes to OHS programs, etc.

Add new Sec. 22.4 allowing MOL to establish standards entities must meet to be designated a safe workplace association or medical clinic or training centre specializing in OHS matters.

Add new Sec. 22.5 making entities designated under Sec. 22.4 eligible for MOL grants.

Add new Sec. 22.6 giving MOL authority to establish an entity responsible for overseeing designated entities that don’t follow requirements.

Analysis: The establishment of a Prevention Council and CPO within the MOL would result in removing the WSIB’s leadership over prevention efforts and represent a major systemic shift—albeit one likely to affect employers indirectly.  

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

Provision 9 & 15: More Stringent Load Support Requirements for Buildings & Structures

Change: Changes Sec. 25(1)(e) to provide that employers have a duty to ensure that a building, structure or part thereof, or any other part of a workplace, whether temporary or permanent, is capable of supporting any loads applied to it: i. Under the design requirements of the Building Code in force at time of construction; ii. other prescribed requirements; or iii. good engineering practice.

Item 15 of the Bill imposes more stringent requirements with respect to the engineering report submitted by the owner, constructor or employer documenting compliance of the building, structure or workplace with Building Code load bearing requirements.

Analysis: This is a bit of housecleaning, one of several items that didn’t come from the Dean Report but was under consideration anyway and got tossed into the mix.    

Likely Effective Date: When Bill is proclaimed—in all likelihood by June 2011.

Provision 10 – 12: Changes to Code of Practice Requirements

Change: Changes regarding Code of Practice rules under Sec. 32.1 thru 32.4 of the Act.

Analysis: Not much of substance—just housekeeping to incorporate terminology and changes in other parts of the Bill.

Likely Effective Date: When Bill is proclaimed—in all likelihood by June 2011.

Provision 13 & 14: More Protections for Workers Against Reprisals

Change: Adds new provision to reprisal section (Sec. 50(2.1)) letting MOL inspector refer reprisal complaint to Ontario Labour Relations Board (OLRB) if the worker agrees and the matter hasn’t been dealt with by final and binding arbitration. Makes other changes to facilitate and expedite the filing of reprisal complaints, including:

  • Clarification that MOL inspector can’t testify in subsequent OLRB proceeding on the matter; and
  • Gives OLRB Chair authority to expedite proceedings (since the longer these cases drag on, the harder it is for workers to persist).

The Bill also proposes to expand the powers of the Office of the Worker Adviser and Office of the Employer Adviser as necessary to implement these changes.

Analysis: This is one of the most important—and unfavourable—items in the Bill. The right to file a reprisal claim under Sec. 50 isn’t new. But in reality, such claims aren’t filed by workers. The Dean Report details what it characterizes as an oppressive and one-sided system where workers are too intimidated by their employers to assert their reprisal protections.

The proposed procedural changes are designed to give workers greater protection and free them up to file reprisal claims. As before, safety reprisals would be adjudicated by the OLRB. But Bill 168 allows MOL inspectors to refer cases to the OLRB.

That’s a very big deal, especially when you consider that if the OLRB decides to take action, a hearing will be held in which the employer bears the burden of showing that it didn’t engage in reprisals. This is a double whammy—a reverse burden of proof and the onus to prove a negative.

Likely Effective Date: Upon proclamation by the Lt. Governor (Reprisal changes are 2 of 8 items requiring individual proclamation separate from proclamation of the actual Bill).

Provision 16 & 17: Immunity of Worker & Employer Adviser

Change: Adds language to Sec. 63 of the OHS Act to provide that persons employed by the Office of the Worker or Employer Adviser can’t be made to appear as witnesses in civil lawsuits or legal proceedings involving the information or material they obtain or furnish in carrying out their duties, except if they’re named as a party in the suit. Also exempts them from having to produce documents or information in such suits.

Analysis: Technical legal change but one which will make it harder for employers to challenge the powers of Worker Adviser and Employer Adviser agents in seizing evidence.   

Likely Effective Date: Upon proclamation by the Lt. Governor (2 of 8 items requiring individual proclamation separate from proclamation of the actual Bill).

Provision 18: Expand Government’s Power to Make Safety Regulations

Change: Current Sec. 70(2) of the OHS Act lists all the things the Lt. Governor has the power to adopt OHS regulations covering. The Bill would add to this list regulations that:

  • Exempt classes of workplaces from HSR training requirements (See #6 above);
  • Establishing training requirements for HSRs;
  • Requiring employers to meet prescribed training requirements;
  • Prescribing the functions of the Office of Worker Adviser;
  • Prescribing the functions of the Office of Employer Adviser.

Analysis: These are technical items designed to give the MOL the authority to establish the regulations necessary to implement the various legislative changes set out in the Bill.

Likely Effective Date: Upon proclamation by the Lt. Governor (1 of 8 items requiring individual proclamation separate from proclamation of the actual Bill).

The remaining items in Bill 160 are proposed changes to the Workplace Safety and Insurance Act, 1997


Provision 19: Elimination of Prevention as Purpose of Act

Change: Deletes the part of Sec. 1(1) of the Act, which sets out the purposes of the WSIA, mentioning prevention of workplace injuries and diseases.

Analysis: Housekeeping change necessary to effectuate the transfer of prevention from the WSIB to the new MOL Prevention Council and CPO. 

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

Provision 20 & 22: Elimination of WSIB’s Prevention Function

Change: Deletes Part II (Secs. 3 thru 10) establishing the injury and disease prevention aspects of the Act, including: 

  • WSIB’s function of promoting public awareness of OHS, educating employers, workers and others about OHS, fostering a commitment to OHS, developing certification standards, designation of workplace associations and other prevention and awareness functions reassigned to MOL Prevention Council and CPO;
  • WSIB authority to establish advisory councils

Analysis: Significant systemic changes necessary to effectuate the transfer of prevention from the WSIB to the new MOL Prevention Council and CPO. 

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

Provision 21: Elimination of WSIB Workers’ Comp Premium Adjustments for First Aid

Change: Deletes WSIB’s authority to grant premium increases or decreases to employers based on compliance with first aid requirements.

Analysis: It’s unclear whether first aid premium adjustments will continue at all. 

Likely Effective Date: Upon proclamation by the Lt. Governor (1 of 8 items requiring individual proclamation separate from proclamation of the actual Bill).

Provision 23: Reallocation of WSIB First Aid Authority

Change: Gives the WSIB the authority to “require employers in such industries as it considers appropriate to have such first aid appliances and services as may be prescribed.” Includes other changes designed to eliminate references to WSIB’s prevention authority.

Analysis: Clarifies that WSIB retains some authority over first aid standards.   

Likely Effective Date: Upon proclamation by the Lt. Governor (1 of 8 items requiring individual proclamation separate from proclamation of the actual Bill).

Provision 24: Revision of WSIB’s Administrative & Monitoring Duties

Change: Revises the WSIB’s administrative and monitoring duties under Sec. 161 of the Act to eliminate references to prevention and other functions assigned to the new Prevention Council and CPO.

Analysis: Significant system changes required to accomplish the shift of prevention and monitoring away from the WSIB and to the new Prevention Council and CPO.   

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

Provision 25: Deemed WSIB Employees

Change: Clarifies that employees of entities designated as safe workplace associations—either before or after Bill 160 comes into effect—deemed employees of the WSIB under Sec. 171(4)(1) of the Act.

Analysis: Grandfathers deemed employment status of currently designated safe workplace associations.  

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

Provision 26: Changes to Payments to Construction Workers

Change: Adds new Sec. 172.1 clarifying that WSIB would continue to pay regularly employed construction workers for time they spend becoming certified under the OHS laws but would not pay persons who represent management on the JHSC. 

Analysis: This is a new requirement basing reimbursement of certification expenses on whether JHSC members seeking certification represent labour or management. 

Likely Effective Date: April 1, 2012 unless proclaimed earlier by Lt. Governor.

The remaining items, 27 to 29, are minor, technical changes to the Act that you don’t need to concern yourself with.

AMPs: The Recommendation that Did Not Make the Bill

Although Bill 161 contains most of the legislative changes necessary to implement the Dean recommendations, one exception stands out: The Bill does not include a proposed change to the OHS laws that would allow for the issuance of Administrative Monetary Penalties (AMPs).

There are 3 possible reasons for the omission:

  1. The MOL rejected the idea of imposing AMPs for OHS violations. This seems highly unlikely.
  2. The MOL decided to hold back AMPs for a subsequent round of reform legislation. This theory, too, seems suspect, especially with a provincial election months away.

The best explanation is that the MOLdoes intend to try and implement AMPs without going through the Assembly. One possibility is that AMPs will be one of the new enforcement “policies” the MOL adopts if and when the authority to set written policies on interpretation, administration and enforcement of the OHS Act (#3 in the Bill) is approved