The OSHA Chronicle is pleased to publish the following guest article written by Norman A. Keith, J.D., LL.M. CRSP, a partner at Fasken Martineau DuMoulin LLP who specializes in Canadian workplace safety and health issues.
For American businesses expanding into Canada, whether opening a new facility or acquiring by a merger or acquisition, there are a number of Canadian Occupational Health and Safety (“OHS”) legal compliance requirements. This article provides 10 things that an American or multi-national business needs to know to ensure OHS legal compliance in Canada.
- Know your Jurisdiction: Canada is a federal state, with a division of legislative authority between the federal and provincial/territorial governments; the Constitution Act, 1867, gives primary responsibility for OHS laws, regulations and enforcement to the provinces/territories; only about 6% of workplaces are federally regulated and fall under the Canada Labour Code, Part II, for OHS law compliance.
- OHS Policy and Programs: Canadian OHS law requires employers to have a written policy and a specific program to implement the policy; most provinces, like Ontario, have performance-based regulations; several provinces, like Alberta, have a more prescriptive based regulations; all jurisdictions require employers to conduct risk assessments and then develop their OHS policy and program.
- Stakeholders Duties and Responsibilities: Canadian OHS law has a high level of stakeholder engagement based on the Internal Responsibility System (“IRS”); each jurisdiction establishes the IRS through legal duties on workplace stakeholders, they include “employers, prime contractors, constructor, directors, officers, supervisors, workers, and suppliers”; all stakeholders have potential legal liability.
- Joint Health and Safety Committees: Canadian OHS law, like that of the European Union, has a high level of worker engagement and requires employers to establish Joint Health and Safety Committees (“JHSC”)’s; a JHSC is required for all workplaces with 20 or more workers; smaller workplaces are required to have a worker appointed Health and Safety Representative (“HSR”).
- Right To Refuse Unsafe Work and Retaliation: all workers with the legal right to refuse to unsafe work; a worker who exercises this right compels an employer to stop the work, investigate the circumstances of the refusal, and provide the worker, and union if any, with a response; if the work refusal cannot be resolved under the IRS, the OHS regulator must be notified, attend the workplace and will resolve the issue between the workplace stakeholders.
- General Duty Clause: Canadian OHS laws have a general duty clauses similar to that of the United States under OSHA; the language, scope, and application of the general duty clause varies by jurisdiction; for example, in Ontario, the duty states that an employer must “take every reasonable precaution for the protection of a worker”; contravention of the general duty clause may result in OHS regulatory enforcement.
- OHS Regulatory Enforcement: enforce of OHS laws and regulations occurs when regulators issue Orders, Administrative Monetary Penalties (“AMPs”) in British Columbia, Manitoba and Nova Scotia, and by strict liability charges brought in criminal court; OHS prosecutions require proof of a contravention beyond a reasonable doubt, with no requirement to prove mental intent; OHS regulatory prosecutions permit an employer to raise an OHS “due diligence” or “reasonable precautions” defence.
- OHS Criminal Negligence Charges: In 2004 the federal government amended to the Criminal Code to establish a crime of OHS criminal negligence; this authorizes police and prosecutors to investigate and prosecute employers, directors, officers, supervisors, and workers; this criminal offence requires proof that the accused failed to “take reasonable steps to prevent bodily harm” and demonstrated “wanton or reckless disregard for the lives or safety of workers” for a criminal conviction; although these charges they may be pursued when there is a serious workplace accident or fatality.
- OHS Management System: OHS regulators aggressively enforce Canadian OHS laws and regulations; to achieve OHS law compliance and the “due diligence” defence, employers must establish an effective OHS management system; the “due diligence” defence will only be available if (i) there is an effective OHS management system in place; and (ii) if there has been effective implementation of the OHS management system in the workplace.
- OHS Law Compliance and Gap Analysis: Norm Keith’s team of OHS Lawyers and Consultants provide complete OHS law compliance services for new business coming into Canada; they also provide a proprietary OHS Law Gap Analysis to assess the current level of OHS regulatory compliance for businesses already operating in Canada.