Everyone is responsible for workplace safety. This may sound cliché but people and organizations that do not report unsafe working conditions or that disregard the safety of others at work can be held liable for those acts/failures to act.
In addition to courts and tribunals, work place investigators, arbitrators, and mediators can all be involved in situations where a person has (rightly or wrongly) refused to perform work that they feel is unsafe or has failed to prevent a foreseeable accident.
The following overview is intended to provide assistance in understanding what legal authorities are involved with safety-related duties and obligations workplace settings.
Legal Framework: Occupational Health & Safety Legislation
All provinces in Canada have statutes that address workplace safety and well-being, which are generally referred to as “occupational health & safety”, or “OH&S”, legislation.
In British Columbia, the Workers Compensation Act, RSBC 1996, c 492 (“WCA”) and its 12 corresponding regulations – including the Occupational Health and Safety Regulation, BC Reg 296/97 (the “H&S Reg”) – provides the framework by which workplace health and safety is promoted, protected, and handled.
A. Potential Liability for Breaching Duties Under the Act
Division 3 of the WCA imposes duties on:
– employers (section 115);
– workers (section 116);
– supervisors (section 117);
– owners (section 119);
– suppliers (section 120); and
– corporate directors and officers (section 121).
The imposition of these duties is important not only for determining the scope of responsibility that a person has in relation to the workplace but also because of the potential consequences of a failure to fulfil these duties.
Section 213 of the WCA provides that it is an offence to contravene the WCA with a maximum penalty for first-offences of “a fine of not more than $724,644.41” and/or imprisonment for 6 months or less. The defence available to any person/organizations that are alleged to have committed a safety violation is one of due diligence regarding prevention (meaning that the person/organization charged took all reasonable steps to prevent the violation from happening). Additionally, workers are provided with an ability to defend alleged violations by asserting that their instructions from a superior resulted in the violation despite the worker having objected.
WorkSafeBC’s website provides an index of fines (searchable by date, amount, and other criteria) for safety violations. According to that site, between April 2013 and March 2019 fines have ranged from $1000.00 to over $640,000.00 for violations.
Even more severe penalties are included within provisions dealing with criminal negligence under section 219(1) of the Canadian Criminal Code, R.S.C. 1985, c. C-46. That section reads:
“(1) Everyone is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
(2) For the purposes of this section, duty means a duty imposed by law.”
The scope of criminal negligence was expanded specifically to include workplace-related people/organizations with the addition of section 217, which reads:
“Every one who undertakes to do an act is under a legal duty to do it if an omission to do the act is or may be dangerous to life.
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
In other words, the same groups listed above (including employers, workers, supervisors, etc.) can be held criminally responsible for actions or failures to act that result in bodily harm. The maximum penalty for a workplace accident caused by negligence and resulting in death – while rarely handed down as a sentence – is life imprisonment (section 220(b)).
B. The Right to Refuse Unsafe Work
Like most OH&S legislation, an important feature of the WCA is that is allows – and provides the procedure – for workers to refuse work that is unsafe.
In BC, the specific provisions that address this process are contained in section 3.12 of the H&S Reg, which obligates workers to require immediate report circumstances that create an “undue hazard” for another person. Effectively, this means that BC workers have an additional duty to report workplace conditions that present an “undue hazard”, which should then be followed with an investigation by the employer.
The federal equivalent of BC’s provincial legislation is found in section 132 of the Canada Labour Code, R.S.C. 1985, c. L-2.
In practice, the refusal to perform unsafe work sometimes results in wrongful dismissal/discriminatory action where a worker has been fired for refusing work.
Application of the Legal Framework: An Example
In A1700361 (Re), 2018 CanLII 135547 (BC WCAT), a furniture delivery-person refused to complete a mattress pick-up after being advised by a customer that the their home contained lice. The employer suggested that the delivery-person’s co-workers could handle the mattress (with appropriate gloves, bags, etc.) and that the delivery-person would only observe the process; the delivery-person refused and was fired. After hearing evidence from multiple witnesses, including medical professionals, the arbitrator found that:
“I am not persuaded that the worker’s belief that the training exercise was unsafe was a reasonable one. He was not required to touch the furniture that was potentially contaminated with lice. He was required to enter the house and observe his co-worker and supervisor removing the contaminated furniture. Even if the lice could jump or fall from the furniture, I do not find it reasonable to believe that the lice would jump or fall onto the worker who was not touching the furniture at issue…. I am not persuaded that the worker’s concerns about lice in the context of the training exercise were reasonable ones. I find that the worker did not have a reasonable belief that merely entering the house […]and observing other workers handle contaminated furniture would create an undue hazard…. As the worker’s belief that the work was unsafe was not reasonably held, section 3.12 of the [H&S Reg] does not apply.”
Health and safety in work environments are promoted and protected by statutory regimes. For federal workers the Canada Labour Code outlines the process for refusing unsafe work. On a provincial level, BC’s Workers Compensation Act and its related Occupational Health and Safety Regulation outlines a similar process, and also set out the duties of all those involved with workplaces. Consequences for safety violations are contained in these statutes as well as in the Criminal Code which deals with negligence resulting in bodily harm/death. The range of safety legislation and seriousness of consequences imposed thereunder establish workplace safety as a matter of the highest priority.
Both the importance of workplace safety, and the gravity of consequences for contravening duties related to it, support the notion that professional legal assistance should be sought when dealing with these types of issues. Contact Neil Hain for a consultation regarding workplace health and safety arbitration, investigation or mediation.