One of the more challenging provision in every Canadian occupational health and safety statute is the "general duty clause". This is a provision placing duties on employers, and sometimes supervisors, as in Ontario, to take "every precaution reasonable in the circumstances for the protection of a worker". Over the years, I have received many calls from clients trying to make sense of the general duty clause to ensure compliance. I have also defended numerous OHS charges, in a number of Canadian jurisdictions, under OHS general duty clauses.
The general duty clause has its origins in the American federal occupational health and safety statute, where it is widely used. For example, the United States does not have any statutory provisions dealing with workplace violence but the general duty clause has been used to compel employers to have a workplace violence prevention program. In Canada, OHS regulators have been very slow to communicate to employers and other workplace stakeholders their particular expectations regarding what general duty clauses mean. There has been very little guidance anywhere in Canada about the expectations of OHS regulators regarding pro-active compliance with general duty clauses.
The general duty clause is so broad and vague that without particulars, a charge would likely be dismissed for lack of particularity. The Charter of Rights and Freedoms provides every defendant, including corporations, with the right to know the specific offence with which they are charged.
Early prosecutions of employers for alleged violations of a general duty clause seemed to create a reverse onus on employers to prove that since there was an accident they were not in breach of the general duty clause. In other words, prosecutors argued that evidence of an accident was proof of a violation of the general duty clause.
This notion was most vigorously pursued by prosecutors in Alberta. However, in 2018 the Alberta Court of Appeal corrected this legal error in the Precision Diversified Oil Field Service Corp.case. In addition to the Alberta Court of Appeal, appellate courts in Saskatchewan, Newfoundland, and Ontario have done so. The general duty clause charges must be particularized, and the particulars must place a reasonable expectation on the employer in the particular circumstances of the case; then it must be proven by the Crown beyond a reasonable doubt.
One of the legal protections of the Canadian legal system is the requirement that all offences, both criminal and regulatory offences, must be proven by evidence beyond a reasonable doubt. When it comes to proof of the general duty clause, however, courts in the past have been somewhat confused. Since the general duty clause language is very similar to that of the second branch of the due diligence defence, courts have sometimes concluded that if an accused corporation does not have a due diligence defence, then the offence must be proven. This is clear error of law.
This brings us to the Quinton Steel decision of the Court of Appeal for Ontario. In that case, a worker fell from a temporary work platform at a height of six feet six inches above the ground at an industrial establishment. The regulations did not require a worker to have a fall arrest system or guardrails at that height above the ground.
At trial, and at the first level of appeal, Quinton Steel was successful in arguing that the general duty clause in the Ontario OHS statute cannot create a higher standard for safety than that of the applicable Industrial Regulations. However, the Court of Appeal for Ontario held that the general duty clause could require safety precautions to be more stringent than found in the applicable regulations. The Court of Appeal held that this was a matter of interpretation of the "circumstances of the case", and that each case must be assessed for what is a reasonable precaution in any particular workplace.
The re-trial of the Quinton Steel prosecution resulted in a 33-page comprehensive, fact specific and well-reasoned judgment. The learned Justice of the Peace held:
"The Crown was unable to point to an objectively reasonable standard to establish whether a guardrail was reasonable…
Although Quinton Steel was an industrial establishment, they had adopted the more prescriptive Construction Project Regulations that specifically address temporary structures. The Quinton Steel policy required that a guardrail be installed on a temporary platform regardless of circumstances at a height of eight feet or more. That policy was known to the Ministry of Labour both before and after the June 7, 2012 incident. The Ministry of Labour also relied on that standard to provide advice to another type of industrial establishment for temporary platforms… The onus was on the Crown to prove the reasonableness 'in the circumstances'… I am unable to find that Quinton Steel failed to take the reasonable precaution necessary in the circumstances by failing to install a guardrail."
The takeaway from this legal review and commentary of general duty clauses includes the following three critical points:
- general duty clauses have now been interpreted to require employers to assess the circumstances of the workplace when doing a workplace risk assessment;
- even if an employer's safety policy complies with the applicable regulation, it may not be in legal compliance if the circumstances of the workplace require a higher standard of safety to protect workers;
- all employers should conduct a workplace risk assessment in the workplace to satisfy the obligation under a general duty clause.
When employers and their legal counsel are facing charges anywhere in Canada under OHS general duty clauses, they should keep the following three points in mind:
- general duty clause charges must be particularized. If they are not, they may be set aside for lack of particularity;
- simply because a general duty clause charge is particularized, does not necessarily mean the precautions are reasonable in the circumstances;
- the Crown must still prove, beyond a reasonable doubt, the particulars were not complied with before the defence of due diligence analysis takes place.
Hopefully this review of general duty clauses is helpful to OHS professionals responsible for implementing occupational health and safety management and prevention systems. It is also intended to clarify the law that has existed for some considerable period of time.