LEGISLATIVE FRAMEWORK

Chapter Learning Objectives

After reading this chapter, you should be able to:

 identify the three health and safety rights granted to workers in

Canada

 describe the regulatory framework surrounding occupational health

and safety

 outline the duties of the major stakeholders under occupational health

and safety legislation

 discuss the nature of and limits placed on work refusals and work
stoppages

 describe the structure and role of joint health and safety committees

 discuss WHMIS 2015 as it applies to the right to know about chemical

hazards in the workplace

 explain how occupational health and safety fits into the Criminal Code

 express how environmental and transportation of dangerous goods

legislation interacts with occupational health and safety concerns

Visual Summary

Watch this summary of the concepts you will be learning in this chapter.
Creative Sentences For OH&S Violations

In Canada, if a person or an organization is convicted of OH&S violations,

they pay a fine to the government. The amount of the fine can vary greatly
depending on the severity of the violation and the jurisdiction in which it
occurs. However, the maximum fine for OH&S violations in some Canadian
jurisdictions is $1.5 million. In very severe cases, individuals may be
sentenced to jail time.

Some jurisdictions allow for creative sentences in addition to or in lieu of

fines, and courts can render creative sentencing options for organizations
and individuals who are guilty of OH&S violations. In a case involving the
fatal electrocution of an electrician, an NS provincial court decision found
that the company had not taken all reasonable precautions to ensure this
employee’s safety. The company was fined $35 000 and under a creative
sentencing option had to make a series of public presentations about the
case, including factors such as the details of the case, the safety issues at
play, and the importance of due diligence. The presentations were to take
place over a period of 18 months and reflect 150 hours of time commitment.
The judge in the case reflected that this case had important and sobering
messages for other small businesses. In an Alberta case where an individual
lost a leg in a workplace incident, the company had to pay $85 000 to the
Construction Safety Association to fund the development of a hazard
assessment training program.

As you reflect on the material in this chapter, consider the possible value of
creative sentencing options. Do you think they would serve as an important
tool in OH&S enforcement?

Sources: L. Johnson, “Alberta OHS Judgment Sparks Creative Sentencing

Debate,” Canadian Occupational Safety, (October 19, 2011). Found at:
[Link]
sparks-creative-sentencing-debate (accessed July 24, 2019); OHS Insider.
“Around the Provinces: Creative Sentences for OHS Violations.” Found at:
[Link]
creative-sentences-for-ohsviolations (accessed July 24, 2019); OHS Insider.
“Infographic: Maximum OHS Fine by Jurisdiction.” Found at:
[Link]
fine-by-jurisdiction (accessed July 24, 2019); Provincial Court of Nova Scotia.
Citation: R. v. R.D. Longard Services Limited, 2015 NSPC 35. Found at:
[Link]
(accessed July 24, 2019).

OH&S and The Law

The opening vignette illustrates some of the fines and sentences that can be
involved in occupational health and safety cases. Occupational health and
safety is regulated under a variety of mechanisms, including acts,
regulations, guidelines, standards, and codes. Each province and territory
publishes its own regulations, which augment the federal ones. OH&S
Notebook 2.1 contains a list of the federal and provincial acts for
occupational health and safety. There are resources that can help workers
and employers identify which legislation applies to them. About 90 percent of
Canadian workers are regulated by OH&S legislation of the province or
territory where they work. The remaining 10 percent are under federal
jurisdiction for occupational health and safety. For example, employees of
the federal government fall under the federal jurisdiction. Federal laws also
govern employees in sectors that operate across borders, such as airports,
rail, and highway transport.1 Thus employers and employees who operate in
one area typically must be familiar with and comply with its provincial or
territorial safety standards. This section provides an overview of the
regulatory framework for occupational health and safety.

OH&S Notebook 2.1: Occupational Health and Safety Legislation in

Canada

Below is a listing of the Canadian jurisdictions for occupational health and

safety legislation, the relevant occupational health and safety act, and the
agencies across Canada that are responsible for these acts and regulations.
Sources: CANOSH, Canada’s National Occupational Health and Safety
Website, “Legislation.” Found at: [Link]
(accessed July 24, 2019); CCOHS, “Canadian Government Departments
Responsible for OH&S—OSH Answers Fact Sheet” (as updated October 19,
2018). Found at: [Link]
(accessed July 24, 2019).

An act is a federal, provincial, or territorial law that constitutes the basic

regulatory mechanism for occupational health and safety. Each jurisdiction
publishes an act that sets out the basic intent and the general rights and
duties of individuals affected by the law. Regulations explain how the
general intent of the act will be applied in specific circumstances.
Regulations typically have the same force of law as the act. Guidelines and
policies are more specific rules but are not legally enforceable unless
specifically referred to in a regulation or act. Finally, standards and
codes provide practical guidance on the implementation of occupational
health and safety practices. For instance, a code or standard may outline
recognized best practices to manage a specific hazard, such as the
maintenance and operation of a crane or another type of heavy equipment.
Codes and standards are not necessarily enforceable by law, unless they are
explicitly identified as required within the OH&S Act. Standards are
established by agencies such as the Canadian Standards Association (CSA),
the International Labour Organization (ILO), the International Organization for
Standardization (ISO), the National Institute for Occupational Safety and
Health (NIOSH), or the American Conference of Governmental Industrial
Hygienists (ACGIH). You can read about one such standard in OH&S Notebook
2.2.

OH&S Notebook 2.2: Canadian Standards for Safety

In 2006 the Canadian Standards Association published CSA Z1000-06:

Occupational Health and Safety Management. This standard was based on
wide consultation and has been described as “Canada’s first consensus-
based approach to occupational health and safety.” The purpose of the
standard is to provide organizations with a model for implementing a health
and safety program. The standard is voluntary and, while standards do not
have the force of legislation, they do provide organizations with “best
practices,” and may provide the basis for a due diligence defence in the case
of legal action. An updated version of the standard was released in 2014.
CSA Z1000-14 maintains focus on helping organizations plan, implement,
review, and revise health and safety management systems. However, it also
considers how to include workers in safety management programming,
clearly differentiates between corrective and preventive actions, and offers
additional insight on planning for continual improvement. The Canadian
Standards Association issues a wide variety of such standards dealing with
issues ranging from workplace electrical safety (CSA Z462) to mental health
issues in the workplace (CAN/CSA Z1003-13).

Sources: CCOHS, “Canada’s First Consensus-based Occupational Health and

Safety Management Standard.” Found at:
[Link] (accessed July 24, 2019); Safety
Lives, “Z1000-14—Occupational Health and Safety Management” (February
18, 2015). Found at: [Link]
health-and-safety-management (accessed July 24, 2019); CSA Group,
“CAN/CSA-Z1000-14. Overview.” Found at:
[Link]
cancsa-z1000 14/invt/2702406014 (accessed July 24, 2019).

The Scope of OH&S Legislation

The scope of the OH&S legislation differs from jurisdiction to jurisdiction, but
in all cases these statutes and regulations have been enacted to protect the
rights of workers. Recall from Chapter 1 that in Canada, the three principal
rights of workers are the right to refuse dangerous work without penalty; the
right to participate in identifying and correcting health and safety problems;
and the right to know about hazards in the workplace. OH&S Today 2.1
illustrates what can happen when an employee’s right to know is not
respected. Statutes and regulations also establish duties that require
compliance. Statutes provide the legal foundation, while regulations enacted
under the statute establish the framework within which the employer will
conduct business in order to comply with the law. All Canadian OH&S
legislation includes the following elements:

 an act;

 powers of enforcement;

 the right of workers to refuse to do unsafe work;

 protection of workers from reprisals; and

  duties and responsibilities assigned to employers and others.

OH&S Today 2.1: The Right To Know

A workplace incident resulted in the imposition of 18 work orders for a

blueberry farm in British Columbia. In April 2012, 10 workers were spraying
the blueberry fields with herbicide when the spray applicator tipped over and
severely injured a worker. The injured worker was transported to the
processing plant to receive first aid and eventually an ambulance was called.
The injured man required knee surgery and spent a month in hospital.

However, it wasn’t until the injured man went public with his story in August
that the authorities became involved. The injured man did not know about
his OH&S rights. In a chance encounter, a taxi driver told him about workers’
compensation and his right to a file a claim. The blueberry farm’s owners had
not notified the appropriate health and safety authorities, which is in
contravention of BC’s Workers’ Compensation Act. Under the act, employers
must report serious incidents. Work orders were issued for a variety of other
problems including the inability of the employer to show that workers had
been trained, the employer’s failure to conduct an immediate investigation
into the incident, the failure to have up-to-date first aid procedures, and the
failure to issue and train workers in the use of proper respiratory protection.

The injured man in this story, Gurdev Khakh, ultimately received help filing a
workers’ compensation claim from an organization called the Progressive
Intercultural Community Services Society, an organization that helps
vulnerable workers, including immigrants, seniors, and young workers,
understand workplace programs, including occupational health and safety
rights. Recent Canadian research shows that such programs respond to a
very deep need. Recent immigrants and refuges to Canada were found to
have higher rates of occupational injury and illness owing to factors such as
poorer working conditions, increased hazard exposure, limited knowledge of
Canadian OH&S laws and rights, and a lower likelihood of voicing safety
concerns at work.

Sources: Jean Lian, “Blueberry Farm Neglected to Report Worker Injury,” OHS
Canada (September 4, 2012). Found at:
[Link]
(accessed July 24, 2019); M. Martins. “Farm Worker Says Accident Has ‘Broke
Him Forever,’” Maple Ridge News (August 10, 2012). Found at:
[Link]
broke-him-forever (accessed July 24, 2019); CBC. “Blueberry Farm Didn’t
Report Injured Worker’s Accident” (August 2, 2012). Found at:
[Link]
report-injured-worker-s-accident-1.1297559 (accessed July 24, 2019);
Progressive Intercultural Community Services. Found at:
[Link]
intercultural-community-services-pics/#.XMiK8HdFyDsY (accessed July 24,
2019); Y. Basak, A. Kosny, and P.M. Smith, “Occupational Health and Safety
Vulnerability of Recent Immigrants and Refugees,” International Journal of
Environmental Research and Public Health 15(9) (2018).

Other elements, which vary among jurisdictions, include mandatory

establishment of joint labour/management health and safety committees,
health and safety policies, accident-prevention programs, and advisory
councils on occupational health and safety.

Human resources, occupational health and safety professionals, and others

responsible for managing health and safety and workers’ compensation
should be familiar with the administrative structure as it relates to
enforcement, education, and compensation in their particular jurisdiction.
Multinational and transportation companies may fall under two or more
jurisdictions, which increases the administrative complexities.

It is important to emphasize the general duty provision requiring employers

to take every reasonable precaution to ensure employee safety is Canada-
wide. In the federal jurisdiction, the duty is sufficiently broad in scope that an
employer could be held liable for failing to ensure the health and safety of an
employee even if there was an absence of a specific violation to a regulatory
provision. The term “ensure” is applied in legislation across Canada and is
accepted to mean the strongest responsibility possible short of a guarantee.

Labour legislation and standards relating to occupational health and safety

are not static. Rather, they are continually being updated. Changes may be
limited and specific; for instance, specific changes to Newfoundland and
Labrador’s Workplace Health, Safety, and Compensation Act came into effect
in July 2019. These changes are such that for workers who experience
workplace trauma and later develop post-traumatic stress disorder (PTSD),
their PTSD will be presumed to be work related. Or the changes can be more
general; for example, substantial changes to the Alberta Occupational Health
& Safety Act were enacted in June 2018.2 Thus, human resource
practitioners, safety professionals, and employers need to maintain current
awareness of standards, regulations, and legislation.

Occupational Health and Safety Acts

Occupational health and safety acts across the country set the minimum
requirements for occupational health and safety within each jurisdiction. For
example, the PEI act notes that its purpose is to “secure workers and self-
employed persons from risks to their safety, health and physical well-being
arising out of, or in connection with, activities in their workplaces.” 3

Each act also states the boundaries of its application. For instance, the PEI
act notes that it applies to “all workplaces within the legislative jurisdiction of
the province.” Exclusions to the act will also be noted. For example, there
was a longstanding farming and ranching exemption in the
Alberta Occupational Health and Safety Act, but these workers are now
included under new legislation that went into effect in January 2016. 4

The acts also outline mandatory components for OH&S within their
jurisdictions. These will include activities and policies such as requirements
for health and safety activities, occupational health and safety policies, and
prevention programs. While components of the acts vary, some are quite
consistent. For example, most acts articulate duties for the major
stakeholders; most mandate joint health and safety committees, and those
that do not have provisions for enacting them when needed; and most
include workplace safety policies. Other components are more variable
across jurisdictions; for instance, some involve input from advisory councils,
and some do not. Likewise, some jurisdictions mandate incident or hazard
protection programs; others do not.

As introduced in Chapter 1, occupational health and safety legislation in

Canada is largely based on the notion of an internal responsibility system.
Within the internal responsibility system all major stakeholders in health and
safety are assigned specific responsibilities. Thus, health and safety acts
include statements of mandated duties for particular groups. In Chapter 1,
we introduced a list of individuals who are stakeholders in OH&S. Recall that
these include employers, contractors, supervisors, and workers. In this
section we examine some of the major duties mandated in occupational
health and safety acts.

Stakeholder Duties and Responsibilities

Duties of Employers

Employers have a primary duty to provide a safe work environment. As

stated earlier, the general duty provision requiring employers to take every
reasonable precaution to ensure employee safety is represented in health
and safety acts across Canada.

Other duties include providing supervision, education, training, and written

instructions where applicable, as well as assisting the joint health and safety
committee or representative and complying with statutes and regulations.
These broad-based duties are called general duties, and are directly
articulated in the occupational health and safety act.

In Ontario the employer’s responsibilities are extensive. The general

employer duties can be described as including, among several other duties,
the following:5

 Take every reasonable precaution to ensure employee safety.

 Appoint competent supervisors.

 Provide information (including confidential information) in a medical

emergency.

 Inform supervisors and workers of possible hazards.

 Post the OH&S act in the workplace.

 Prepare and maintain a health and safety policy to be reviewed

annually.

 Prepare policies regarding workplace violence and workplace

harassment.

All federal and provincial or territorial OH&S acts include prescribed

duties that may come into effect by regulation at some time. These
prescribed duties may include an employer’s responsibility to establish
occupational health services, or a description of the written procedures that
may be required. To continue the example from above, in Ontario, prescribed
duties for employers include assessing risk for workplace violence given the
nature of their workplaces.

OH&S Today 2.2: Medical and Recreational Cannabis Use in Canada:

an OH&S Concern?
In October 2018, the Cannabis Act passed into law, making Canada the
second country to legalize recreational cannabis. In the months leading up to
the legislation, Canadian employers and occupational health and safety
professionals prepared for the ways that legal cannabis use would affect
workplace policies and safety.

Canadian employers have addressed challenges raised by medical marijuana

use in varied types of work settings for almost two decades. The rules
around medical cannabis are such that a company may have to
accommodate, that is, make provisions for, an employee who is prescribed
medical cannabis as treatment for a disability. That said, there are still many
questions about the parameters around medical cannabis use in safety-
sensitive positions. A recent Supreme Court decision in Newfoundland and
Labrador concluded that the lack of accurate measurement tools to detect
degree of impairment after medical cannabis use, given the potency and
dosage of the cannabis prescribed to the employee in question, meant that
the employer could not reasonably accommodate the employee in a safety
sensitive job.

In the case of recreational cannabis, despite the recent legislation,

employers can still expect workers to be sober on the job. Employers are not
expected to allow provisions for an employee’s recreational cannabis use,
unless there is a diagnosed addiction for which the employee is being
accommodated under human rights laws. In the case of recreational
cannabis, employers should keep some key issues in mind. The focus should
be on a person’s fitness to perform the assigned work and how cannabis use
may impair that ability as opposed to policies based on morality or zero
tolerance. Employers also should keep their focus on assistance in a
proactive manner rather than to emphasize reactive discipline. Finally,
employers should note that drug testing can be controversial owing to
questions about how it affects employees’ rights to privacy with random drug
testing prompting many legal challenges.

Sources: OHS Insider, “OHS Compliance Briefing: Preserving Workplace

Safety in the Legal Cannabis Era: 10 Practical Pointers.” Found at:
[Link]
preserving-workplace-safety-in-the-legal-cannabis-era-10-practical-pointers
(accessed July 24, 2019); R. MacLean, “A Brief History of Marijuana in the
Workplace” (September 24, 2017), Canadian Occupational Safety. Found at:
[Link]
workplace (accessed July 24, 2019); Cox & Palmer, “Employer’s Refusal to
Hire Medical Cannabis User Upheld by NL Court” (March 29, 2019). Found at:
[Link]
medicalcannabis-user-upheld-by-nl-court (accessed July 24, 2019); P. Attfield,
“Cannabis Concerns at Work,” The Globe and Mail (March 27, 2018). Found
at:[Link]
article-cannabis-concerns-at work (accessed July 24, 2019).

Duties of Contractors

In health and safety legislation, a constructor or a primary contractor is a

person or company that oversees the construction of a project and that is
ultimately responsible for the health and safety of all involved workers.
Constructors/primary contractors have responsibilities similar to those
outlined for employers. For instance, Yukon’s Occupational Health and Safety
Act specifies that “Every constructor shall ensure, so far as is reasonably
practicable, that during the course of each project the constructor
undertakes (a) the measures and procedures prescribed by this Act and the
regulations are carried out on the project; (b) every employer and every
person working on the project complies with this Act and the regulations; and
(c) the health and safety of workers on the project is protected.” 6 In some
jurisdictions, when a construction project is scheduled to commence, a
constructor/primary contractor has a duty to notify the authority within a
specified time. Some jurisdictions require a written “Notice of Project” to be
filed outlining the approximate cost, scope, commencement date, and
duration of the project.

Duties of Supervisors

The OH&S duties assigned to supervisors are similar across Canada.

“Supervisor” is broadly interpreted to refer to a person (with or without a
title) who has charge of a workplace and authority over a worker. Supervisors
can be union members, association members covered under a collective
agreement, plant managers, general managers, lead hands, forepersons,
school principals, or self-employed individuals. For instance, in Newfoundland
and Labrador’s Occupational Health and Safety Act, a supervisor is “a person
authorized or designated by an employer to exercise direction and control
over workers of the employer.” Under this provincial legislation supervisors
have a general duty to “ensure, where it is reasonably practicable, the
health, safety and welfare of all workers under his or her supervision.”
Specific duties include advising workers of safety hazards, providing
instructions about safety precautions, and ensuring that workers use
protective equipment.7

Duties of Workers

Duties of workers are included in the majority of statutes. In some

jurisdictions the responsibilities are laid out by regulation. The inclusion of
workers’ responsibilities and duties is relatively new in health and safety
legislation. Before the late 1970s, all responsibility for workplace health and
safety rested with the employer. Now, though the employer is solely
responsible for paying for health and safety activities, everyone is
responsible for making them work. For example, some of the worker duties
under the Canada Labour Code can be paraphrased to include.8

 properly using the safety equipment and clothes provided;

 taking all reasonable precaution to ensure their own health and safety
and that of those who may be affected by their work activities;
  reporting hazards, such as defective equipment, to the employer;

 reporting any contraventions of the act or regulations;

 reporting to the employer work-related incidents and occupational

diseases; and

 cooperating with health and safety policy, committees, and persons

carrying out duties required by the code.

Stakeholder Summary

As we can see from the above consideration of duties, the occupational

health and safety acts across Canadian jurisdictions reflect the philosophy of
the internal responsibility system. All individuals share responsibility for
health and safety in the workplace. Together, the shared and specific duties
for various stakeholder groups help enact the regulations designed to keep
our workplaces safe.

Joint Health and Safety Committees

Joint health and safety committees in the workplace are required by law in
most jurisdictions in Canada. OH&S Notebook 2.3 details the requirements
for when a joint health and safety committee is necessary in workplaces
across Canada. Note that although in this text we use the label “joint health
and safety committee,” these committees may be called by other names; for
example, “joint occupational health and safety committee,” “worksite safety
committee,” and others.

OH&S Notebook 2.3: When do Organizations Need Joint Health and

Safety Committees?

Whether a workplace must have a joint health and safety committee largely
depends on its size and the occupational health and safety jurisdiction it falls
under. Most health and safety acts require a joint occupational and safety
committee in workplaces with 20 or more employees. These include the
federal jurisdiction, Alberta, British Columbia*, Manitoba*, Ontario*, New
Brunswick, Nova Scotia, Prince Edward Island, Yukon, and Northwest
Territories/Nunavut*. That said, some of these jurisdictions (indicated by an
asterisk), have special provisions that can require a smaller organization to
have a committee in place as a result of an order and/or when requested by
the governing body. Ontario has additional provision for committees when
designated substances are in use. Two jurisdictions, Newfoundland and
Labrador and Saskatchewan, require a committee when there are 10 or more
employees. Quebec’s act permits the formation of health and safety
committees in workplaces where there are more than 20 employees and the
organization falls under a category recognized in regulations. The committee
is established by written notice by the certified association or 10 percent of
the workers in the case of workplaces without certified associations. The
CNESST also has the ability to require a committee in a Quebec workplace
regardless of the number of workers.

Sources: CCOHS, “Joint Health and Safety Committee—What Is a Joint Health

and Safety Committee?” Fact Sheet (July 26, 2018). Found at:
[Link]
(accessed July 24, 2019); Quebec, An Act Respecting Occupational Health
and Safety, Chapter 4. Found at:
[Link]
ptype=2&file=/S_2_1/S2_1_A.html (accessed (July 26, 2018), 2019)

The joint health and safety committee helps enact the internal responsibility
system. The inclusion of “joint” in the title reflects that both labour and
management participate in the work of the committee. The primary function
of the joint health and safety committee is to provide a nonadversarial
atmosphere in which labour and management can work together to create a
safer and healthier workplace. The committee can bring together knowledge
of work tasks and company policies and procedures to improve health and
safety.9

Occupational health and safety legislation regulates the formation and

composition of the joint committee. Legislation typically mandates that joint
committees are structured in such a way that equal or better representation
is required from workers who do not exercise managerial responsibilities. For
example, in New Brunswick, the committee size is to be agreed upon by the
employer and employees. The committee must have equal representation
from the employer and its employees and is co-chaired by an employer
representative and an employee representative. The committee must meet
once a month.10 Additionally, most acts outline training requirements for
committee members. For example, in British Columbia and Manitoba,
committee members are entitled to an annual educational leave to attend
training. In Saskatchewan, employers are responsible to ensure that
representatives receive training.11 Training for committee members might
include law, general safety, hygiene, inspections, job safety analysis, indoor
air quality, chemical safety, certified workers’ rights and duties, and joint
committees’ responsibilities.

What are the duties of a joint health and safety committee? These differ
somewhat across the country, but duties can include things such as hazard
recognition, risk assessment, responding to employee concerns, and
ensuring that records are maintained and monitored. 12 Certified members
may be involved in inspections, work refusals, and bilateral work stoppages
when there is an imminent hazard to a worker. They may also investigate
critical accidents, attend at the beginning of hygiene testing, and respond to
worker concerns.

The existence of joint health and safety committees grows out of the idea of
an internal responsibility system (IRS)—the suggestion that work and safety
are inexorably linked and that all parties in the workplace have a
responsibility to improve health and safety. 13 A review of the research
literature generally supports the effectiveness of joint committees in
managing health and safety, particularly that the existence of joint health
and safety committees can lead to a reduction in the number of workplace
injuries.14 However, it is important to emphasize that the existence of a joint
health and safety committee does not necessarily mean that the committee
is effective.15 Researchers have considered the elements that make for an
effective joint occupational health and safety committee. Some of the key
features of an effective joint committee include being appropriately trained,
operating in a workplace where senior management is supportive, being
empowered in their work, visibility in the workplace, good communication
with the workforce, and having adequate resources. 16 Effective joint
occupational health and safety committees can make a real, positive
difference in health and safety outcomes.

Work Refusals
The right to refuse dangerous work without fear of reprisal is available to
workers in every jurisdiction in Canada. Within that right, workers can refuse
to operate equipment, work in a place, or engage in an activity if they
have reasonable cause to believe that doing so would cause danger to
themselves or others. Some hypothetical situations where a worker might
feel at risk for illness or injury and launch a work refusal include the
following: A machinist refuses to operate a particular press at work owing to
a missing safety guard. A crew of outdoor workers refuse to work outside
under very cold conditions because they feel their required uniform does not
provide adequate personal protection. A construction worker refuses work
because there has been a safety recall on the company-provided hard hats. A
courier refuses to deliver a package to the home of a violent individual who
has previously thrown heavy objects at delivery people.

There are established procedures for engaging in and investigating a work

refusal. Here is a sketch of the general process of reporting and investigating
a work refusal, although various jurisdictions may differ somewhat in the
exact process. The employee should alert the employer to the danger and
indicate the intention to refuse due to a reasonable assumption that the work
is unsafe. The employer then investigates. Note that another employee
cannot be asked to perform the work in the interim. Following the
investigation, the employer writes a report. If the conclusion is that danger is
present, corrective actions are to be taken. If the employer concludes there
is no danger, the worker may opt to return to the task. However, if the
worker disagrees and still refuses, the refusal is taken to a committee that
conducts additional investigations and reporting. If the conclusion is the
same, the refusal can be taken to the relevant government ministry. At this
point, the employee may be assigned to other work while the investigation
continues.17

Following appropriate procedures in work refusal situations is important.

Case law shows when work refusals go through the appeals process, the
courts will consider whether appropriate reporting and investigations took
place. They will also examine whether the motivation for the refusal was in
bad faith; for instance, avoiding discomfort or reflecting other labour
concerns as opposed to true safety concern.18 Some of the complexities in
work refusals are explored in OH&S Today 2.3.

OH&S Today 2.3: The Right to Refuse Unsafe Work

Although the right to refuse unsafe work is well enshrined in occupational

health and safety legislation, enactment of that right can be confusing for
employees and employers alike. In fact, in 2014 changes to the Canada
Labour Codetook effect. These changes were in part to clarify confusion
around work refusals. One change was to provide a more specific definition
of danger so that work refusals are enacted only in light of a serious and
imminent safety threat.

One area of complexity is differentiating work refusals based on safety

concerns versus those based on a worker’s level of comfort. In cases where
workers refuse work based on heat stress, the question of discomfort versus
danger are often key. For instance, in one case, a work refusal was upheld for
hotel porters whose multi-layered uniforms exacerbated risk of heat stress
when working outside in hot summer conditions. Yet, in another case,
railways workers’ refusals regarding potential heat stress due to the ponchos
they were required to wear were dismissed because the frequent breaks
permitted reduced the risk of heat stress. In such cases things like the actual
thermal conditions as well as exacerbating (e.g., warm uniforms) and
mitigating (e.g., provision of breaks) are considered in determining the
validity of the ground for work refusal.

In another case, correctional workers at a jail in Hamilton, Ontario, were

tasked with conducting a search of the cells for a missing piece of metal.
Fearing that inmates could have made a knife out of the metal, workers
refused to conduct the search unless they were allowed to wear protective
vests while searching. The employer initially refused—arguing that wearing
the vests would likely intimidate inmates. In this case, a Ministry of Labour
investigation also concluded that there was no enhanced risk and vests were
not needed. However, management eventually allowed the guards to don
vests to conduct the search. Although the initial issue was resolved, the
guards ended up locked out of the job when the union and ministry
continued to debate the legitimacy of the safety complaint.

Sources: K. Jensen and S. Robinson, “Changes to the Canada Labour Code:

Work Refusals and Narrower Definition of Danger,” Canadian Employment
Law Today (October 20, 2014). Found at:
[Link]
labour-code-work-refusals-and-narrower-definition-of-danger (accessed July
24, 2019); OHS Insider, “Seasonal Safety: Is Fear of Heat Stress Valid
Grounds for Refusing Work?” Found at: [Link]
heat-stress/seasonal-safety-is-fear-of-heat-stress-valid-grounds-for-refusing-
work (accessed July 24, 2019); and Sabrina Nanji, “Jail Guards Locked Out
After Bulletproof Vest Brouhaha,” OHS Canada (September 10, 2012). Found
at: [Link]
vest-brouhaha/1001682264 (accessed July 24, 2019).

That said, there are exceptions or limitations to the right to refuse unsafe
work. The specifics of these situations vary from jurisdiction to jurisdiction
across the country. However, the essential theme is that a worker does not
have the right to refuse unsafe work if such work is a normal condition of
employment, or if the worker, by his or her refusal, places another person’s
safety in jeopardy. These conditions are noted in in the Canada Labour Code.
Provincial jurisdictions may expand or specify these exceptions. For instance,
Ontario specifically notes, in addition to the situations noted above, certain
professions have a limited right of refusal. These groups include police
officers, correctional workers, firefighters, and health care workers. This does
not mean that workers in these groups never have a right to refuse
dangerous work. For example, a firefighter has the right to refuse to use
unsafe equipment during an exercise. However, a firefighter cannot refuse
work on the basis of being exposed to the dangers of fires, which are an
inherent aspect of the job. A nurse has the right to refuse to use equipment
suspected to be defective until his or her concern has been investigated and
resolved. However, a nurse does not have the right to refuse unsafe work if
the lives of patients are placed in jeopardy as a result of the refusal. 19

Stop-Work Provisions

Some Canadian occupational health and safety acts incorporate stop-work

provisions. Included in Alberta’s 2018 updates to its Occupational Health and
Safety Act are changes that bolster OH&S officers’ ability to issue stop-work
orders and to ensure that affected workers receive their regular pay and
benefits during stop-work period.20 For example, in Ontario certain persons
have authority to stop work under the Health and Safety Act. Bilateral work
stoppages allow certified members of the joint health and safety committee,
representing both the employer and employee members of the joint health
and safety committee, to agree to stop work in dangerous circumstances
that become apparent in the course of an inspection or investigation. If both
sides do not agree that there are dangerous circumstances, the legislation
permits unilateral work stoppages with the notification and involvement of
the Ontario Labour Relations Board. The legislation defines “dangerous
circumstance” as follows:21

 a provision of the act or the regulation is being contravened;

 the contravention presents a danger or a hazard to a worker; and

 the danger or hazard is such that any delay in controlling it may

seriously endanger a worker.

Workplace Hazardous Materials Information System

The Workplace Hazardous Materials Information System (WHMIS) is an
important aspect of workers’ right to know about hazards in their workplaces,
particularly about hazards that may be associated with handling, storage,
use, and emergency measures for chemicals used in the workplace, and, by
extension, the community. WHMIS was legislated in Canada in 1988, and
phased into force across the country between 1988 and 1990. 22

The original 1988 WHMIS legislation was based on three elements: labels
designed to alert the worker that the container contains a potentially
hazardous product, material safety data sheets (MSDSs) outlining a product’s
potentially hazardous ingredient(s) and procedures for safe handling of the
product; and employee training. Note that Ontario added three further
elements to its legislation including hazardous materials inventory
requirement, physical agents (such as noise), and the public’s right to know.

More recently WHMIS has undergone substantial changes in structure to

align with the Globally Harmonized System of Classification and Labelling of
Chemicals (GHS). The GHS is an international standard being adopted by
countries around the world, which eases global trade and business
interaction. WHMIS 2015 incorporates elements of the GHS. There are
changes in the classification criteria with some new classes added, new
requirements for supplier labels, and new formatting and information
requirements for Safety Data Sheets (which are no longer called Material
Safety Data Sheets).23 The transition to the new system took place in phases
from 2015 to 2018 during which time government jurisdictions updated
regulations and acts to comply with WHMIS 2015, and businesses
transitioned to the new system. WHMIS 2015 is considered in more detail in
Chapter 6.

Corporate Liability for OH&S Under the Criminal Code

In the past, directors and officers of incorporated entities were responsible

solely to the corporation and shareholders; however, their zone of
accountability now extends to the public at large. Environmental and OH&S
statutes have been amended to include broad responsibilities for directors
and officers of corporations. For example, directors and officers of
corporations can be fined or imprisoned for environmental pollution and
fined for failing to comply with regulatory legislation.

Although executives of a company could once hide behind the laws of

incorporation when it came to occupational health and safety incidents, this
is no longer the case. Changes to the Criminal Code mean that company
executives can be found criminally negligent for serious occupational health
and safety violations and face fines and prison time accordingly.

As mentioned in Chapter 1, these changes to the Criminal Code followed the

1992 Westray tragedy. This Nova Scotia mine explosion, which killed 26
miners, was determined to be attributable to corporate negligence. However,
Canadian laws at the time did not permit criminal charges. Following
Westray, a federal bill (Bill C-45) was proposed to address the issue of
corporate liability with respect to both fraud and occupational health and
safety. The bill was passed by Parliament in 2003 and became law in March
2004. The passing of the bill into law meant the addition of sections to
the Criminal Code of Canada. Specifically, it resulted in the addition of
Section 217.1, which states that those in authority for workers have a
responsibility to take reasonable steps to protect those workers from harm.
Furthermore, Sections 22.1 and 22.2 specify that corporations can be
criminally liable for negligence and other offences. 24 The act makes a
company responsible for

 the actions of those who oversee day-to-day operations (e.g.,

supervisors and mid-level managers);

 managers (executive oroperational) who intentionally commit, or have

employees commit, crimes to benefit the organization;

 managers who do not take action when they become aware of offences
being committed; and

 the actions of managers who demonstrate a criminal lack of care (i.e.,

criminal negligence).

These changes to the Criminal Code could lead to a corporation and its
managers being criminally prosecuted for failing to provide an appropriate
standard of occupational health and safety in the workplace if an employee
died or was injured as a result of that negligence. This brings the notion of
“corporate homicide” into the Canadian Criminal Code for the first time,
which substantially raises the stakes for managers and corporations.
Furthermore, companies cannot shift blame to frontline managers because
the legislation details that companies are responsible for ensuring that
frontline staff know the appropriate rules, regulations, and working
procedures and that employees follow the procedures. It is no longer possible
to claim that employees were derelict in their responsibility.
The passage of Bill C-45 was greeted with great fanfare; the first charges
(relating to the death of a construction worker) were laid in 2004 but were
subsequently withdrawn in 2005. Three people were changed with criminal
negligence in the Lac Mégantic tragedy, where a train carrying crude oil
exploded resulting in 47 deaths. However, all three were acquitted following
a jury trial.25 As a result, there has been some concern that the law has no
“teeth” in practice. Whenever charges could be laid under either the safety
legislation (provincial) or the Criminal Code (federal), the preference seems
to be for safety legislation to prevail. It seems that the Criminal Codeis likely
to be invoked in only the most severe, egregious, and atypical cases.
Nonetheless, there have now been several convictions under the act. In one
case, Transpave Inc. pled guilty to criminal negligence relating to a death of
an employee and was fined $110 000. In a second case, a landscape
contractor (Pasquale Scrocca) was sentenced to two years less a day to be
served in the community for criminal negligence causing death when one of
his employees was crushed by an improperly maintained backhoe. Merton
Construction pled guilty to criminal negligence charges in relation to a
staging collapse that killed four workers in Toronto on Christmas Eve, 2009.
The company received fines of $230 000 with an additional $90 000 fine for
the president of the firm. In January 2016, the project manager in the Merton
case was sentenced to 3.5 years in prison for his role in the tragedy.
Nevertheless, critics point to the fact that the penalties still do not reflect the
seriousness of the charges.26
Environmental Legislation

Environmental and occupational health and safety laws are closely linked. In
recognition of this fact, many companies and institutions have occupational
environmental health and safety departments. Some of the intersections
between OH&S and environmental sustainability are explored in OH&S Today
2.4. The occupational health and safety professional will be aware of the
overlap in environmental and OH&S statutes and regulations. For example,
chemicals that can cause damage to a worker may also cause damage to the
ecosystem if released into the environment. Recall the rail tragedy at Lac-
Mégantic explored in Chapter 1. Following the derailment and its associated
explosions, there are concerns about the lasting environmental effects on the
soil and water. Some of the changes laid in that case were in fact under
the Fisheries Act.27
OH&S Today 2.4: Corporate Social Responsibility: The Intersection of
Safety and Environmental Concerns

Via the corporate social responsibility movement, many organizations

identify environmental protection and safety promotion as core
organizational priorities. In 2016 the Canadian Standards Association (CSA)
adopted the International Standards Organization’s (ISO) standard on social
responsibility as a guide for Canadian organizations. Under a corporate social
responsibility philosophy, organizations make a purposeful effort to
incorporate social and environmental considerations into their business
decision-making frameworks. It is easy to see how the health and well-being
of employees, community, and the planet are social responsibilities for
organizations. Some organizations are putting this into practice and
reflecting on their health and safety activities as part of their corporate social
responsibility programming.

Consider Morneau Shepell, an HR services company offering technology-

enabled services in areas such as employee assistance, pensions, and
benefits. Its 2018 Corporate Social Responsibility Report highlights the ways
that core values in workplace experiences, supporting communities, and
environmental stewardship drive its operations. For example, the
organization’s workplace health and well-being programs focus on physical,
mental, and social well-being, and its environmental initiatives include a
green procurement process.

Internationally, Denmark has legislation pertaining to mandatory reporting of

corporate social responsibility activities. Developments in legislation,
standards, and codes pertaining to corporations’ social responsibilities will be
something to watch for in the coming years.

Sources: M.J. Montero, R.A. Araque, and J.M. Rey, “Occupational Health and
Safety in the Framework of Corporate Social Responsibility,” Safety Science,
47(10) (2009), 1440–1445; Morneau Shepell, “Corporate Social Responsibility
Report 2018.” Found at:
[Link]
(accessed July 24, 2019); OHS Insider. “CSA Publishes First Edition of Social
Responsibility Guidance.” Found at:[Link]
diligence/csa-publishes-first-edition-social-responsibility-guidance (accessed
July 24, 2019); Norm Keith (October 24, 2011), “Corporate Social
Responsibility: An International Perspective,” OHS Insider. Found
at:[Link]
[Link] (accessed April 30, 2010).
By way of illustration, federal statutes relating to some aspect of
environmental or health and safety management are listed in OH&S
Notebook 2.4. Regulatory laws related to environmental assessment, public
health, waste disposal, buried fuel tanks, and storage or use of pesticides
have an impact on the environment, the public, and the occupational health
and safety of employees. The practitioner is required to understand
environmental and OH&S jurisdictions and the potential for overlap. If a
release of a potentially hazardous substance occurs within a building (other
than residential), it falls under the jurisdiction of the authority enforcing the
health and safety legislation. If the release is outside the building, or if the
potentially hazardous substance is released into the sewer, storm system,
water, or air, it falls under the jurisdiction of the authority enforcing the
environmental legislation. Any single occurrence may involve both
authorities.

OH&S Notebook 2.4: Building Awareness of the Statutes Relevant to

OH&S in Canada

You’ve likely determined at this point in the chapter that there are many
statutes and regulations relevant to OH&S in Canada. First, each jurisdiction
has its own OH&S legislation. There are also considerations for OH&S in
Canadian human rights and freedoms legislation. Human rights legislation is
pivotal in protections and accommodations offered to injured or ill workers.
However, we also see that there are overlaps in OH&S, environmental, and
transportation spheres. Thus, statutes pertaining to the environment and
transportation of dangerous goods also need to be on the radar of
employers, OH&S professionals, employees, and other stakeholders in OH&S.

These are some of the federal statutes relevant to OH&S:

 Canadian Environmental Protection Act

 Hazardous Products Act

 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act

 Canada Labour Code, Part IV

 Criminal Code of Canada

 Pest Control Products Act

  Transportation of Dangerous Goods Act

 Radiation Emitting Devices Act

 Canada Shipping Act

 Radiation Protection Regulations

There are also many relevant provincial and territorial statutes relevant to
OH&S. These include the OH&S acts, which we have considered throughout
the chapter. Provinces and territories also have specific legislation around
the protection of human rights and freedoms. Some provinces, such as
Ontario and Manitoba, have specific acts pertaining to accessibility for
persons with disabilities, which also have OH&S implications, particularly
relating to workplace accommodations. In addition, there are
provincial/territorial laws pertaining to the environment, waste management,
and the transportation of dangerous goods that need to be considered as
necessary.

Transportation of Dangerous Goods

The regulation of environmental hazards, occupational health and safety,

and transportation of dangerous goods is not the exclusive domain of the
federal, provincial, or territorial governments. Therefore, the OH&S
professional should be familiar with the statutes relevant to his or her
particular jurisdiction. In essence, the environmental and transportation
legislation seeks to supply the framework within which society can protect
itself from the risk that attends the transportation of inherently dangerous
materials.

The federal legislation governing the transportation of dangerous goods

applies to all persons who handle, offer for transport, transport, or import
any dangerous goods. The provincial or territorial legislation does not always
go this far, making it sometimes impossible to determine which statutes
apply. Notwithstanding some provincial or territorial limitations, dangerous
goods legislation applies to carriers, shippers, and transportation
intermediaries such as freight forwarders and customs brokers. Various
regulations exist with respect to identifying and placarding dangerous goods,
controlling quantities, and training and certifying workers. The regulatory
wording complements the WHMIS requirements and the OH&S responsibility
of employers and supervisors to educate and train workers.
In R. v. Midland Transport Ltd. (1991) the New Brunswick Provincial Court
made the following observation about the legislation: “The Transportation of
Dangerous Goods Act and the Regulations thereunder with the act fall in the
category of legislation which creates public welfare offences. Recognizing the
potential dangers, it establishes safety guidelines for the handling of
hazardous materials to ensure the protection of the public and the
environment.”

Summary

The complexities associated with OH&S legislation in Canada continue to

increase. This chapter has outlined the scope of this legislation and the
changing climate surrounding it. We began by reviewing the three principal
rights of employees (the right to know, the right to participate, and the right
to refuse) and how they are enacted in health and safety programs. We
discussed the legislative framework of OH&S legislation. We paid particular
attention to the duties of major stakeholders (employers, constructors,
supervisors, employees) and their reflection of the internal responsibility
system. We considered work refusals and work stoppages as concrete
enactments of the right to refuse unsafe work. Further, we examined joint
health and safety committees, which exemplify the right to participate in
decision making around occupational health and safety. The elements
composing WHMIS, a manifestation of the right to know, were reviewed with
particular attention to the recent alignment with the GHS. We also explored
corporate criminal negligence. Finally, we considered ancillary legislation
(e.g., regarding environmental concerns and transportation of dangerous
goods).

Key Terms

act
constructor
general duty
GHS
guidelines and policies
prescribed duty
regulations
standards and codes