As of October 31, 2014, several amendments to the occupational health and safety (“OHS”) provisions of the Canada Labour Code (the “Code”) came into effect. Those amendments may have significant implications for federally-regulated organizations, particularly inasmuch as Parliament has now transferred statutory authority from “a health and safety officer” directly to the Minister of Labour, and has revised (i) the statutory definition of “danger” and (ii) the work refusal process.

Transfer of Authority from Health and Safety Officers to the Minister

As a result of these amendments, the definitions of “health and safety officer” and “regional health and safety officer” have been repealed, and all references to those terms throughout the legislation have been replaced with the word “Minister” (i.e. the federal Minister of Labour). That said, the amendments also stipulate that “subject to any terms and conditions specified by the Minister, the Minister may delegate to any qualified person or class of persons any of the powers, duties or functions the Minister is authorized to exercise or perform” and, without limiting the generality of the foregoing, that the Minister may “enter into an agreement with any province or any provincial body specifying the terms and conditions under which the Minister may delegate to a person employed by that province or provincial body the powers, duties or functions that the Minister is authorized to exercise or perform.”

Although the legislative amendments seem to remove the focus from health and safety officers, it seems likely that the Minister will nonetheless delegate her responsibilities to those individuals who previously exercised the mandate of health and safety officers; and, accordingly, employers may see little change to the enforcement of the health and safety provisions of the Code. In fact, given the new provisions that allow the federal government to delegate enforcement responsibilities to provincial employees, it is possible that some employers will actually see an increase in federal health and safety enforcement efforts. In that regard, the practical upshot of those provisions remains to be seen.

The New Definition of “Danger”

Unlike the definition of “danger” that previously appeared in the Code, the new definition requires that the hazard, condition or activity present an “immediate or serious threat to the life or health of a person exposed”. The new definition also removes reference to “exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system.”

Those changes, in turn,

• impact the Code’s definition of “safety” (i.e. “protection from danger and hazards arising out of, linked with or occurring in the course of employment”);
• narrow the circumstances in which a worker is permitted to refuse work (i.e. when (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee, (b) a condition exists in the place that constitutes a danger to the employee, or (c) the performance of the activity constitutes a danger to the employee or to another employee);
• limit the circumstances in which an employer is required to take immediate action (i.e. the employer shall take immediate action to protect employees from the danger); and
• affect the enforcement powers of the Minister in dangerous situations.

According to Minister of Labour Kellie Leach, the revised definition of “danger” is intended to reduce the number of total work refusals, freeing up resources for “proactive interventions by health and safety officers.” With the changes only recently coming into force, data is not yet available to determine whether the revision is having its desired effect; however, workplace stakeholders of all stripes will no doubt be monitoring the impact of this change over the year ahead.

Changes to the Work Refusal Process

On account of the revisions to the Code, employers now have expanded responsibilities to respond to work refusals. In particular, employers are now required to immediately (a) investigate the reported danger in the presence of the employee who reported it and (b) prepare a written report setting out the results of the investigation.

In contrast to the former work refusal process, which required the employer to notify a health and safety officer in the event that the work refusal continued beyond the employer reviewing and attempting to rectify the issue with the employee, the revisions to the Code provide for a second level of internal review and adjudication by the employer. In particular, if the work refusal continues following the employer’s report, the work place health and safety committee then has the responsibility to appoint one “employee member” and one “employer member” to investigate the reported danger, and to prepare their own written report to the employer setting out the results of their investigation and their recommendations. Upon receipt of that report, the employer has the opportunity to provide additional information; but it must ultimately determine whether or not a danger exists.

Of course, if the work refusal continues beyond that point, the employer must notify the Minister and provide the Minister with a copy of its report, together with the report of the work place committee.

Significantly, the revisions to the Code now give the Minister discretion not to investigate the reported danger (i.e. if the matter is trivial, frivolous or vexatious, or if the employee’s continued refusal is in bad faith); and, if the Minister exercises that discretion not to investigate, the employee will no longer be entitled to continue his/her work refusal.

In light of the Ministry’s position that “over a 10 year-period, 2000 to 2010, more than 80 per cent of the refusals to work have been determined to be situations of no danger, even after allowing appeals”, it appears that the changes to the work refusal process (and, in particular, the Ministerial discretion not to investigate) are also intended to conserve resources; and it seems that the Ministry has determined that that goal can be achieved without diminishing employee safety.

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In response to these changes to the Code, federally regulated employers should revisit (and, if necessary, revise) their health and safety programs and policies to ensure ongoing legislative compliance, particularly in relation to work refusal protocols. Given the scope of the changes, employers might also consider providing members of their workplace committees with refresher training, and sending a summary to employees and supervisors to inform them of how these changes impact their OHS rights and responsibilities.

About the Author: Toronto Employment Lawyer Ryan D. Campbell assists both employers and employees in all facets of employment law, workers’ compensation law, and occupational health and safety law. Ryan also has experience assisting Ontario employers in complying with the Accessibility for Ontarians with Disabilities Act, and advising on the use of social media and technology in the workplace.