Compliance Management

Corporate performance benchmarks and the compliance horizons for occupational health and safety are continually evolving.

With fourteen primary jurisdictions responsible for workplace safety, Canada can boast of over 500 different pieces of health, safety and environmental statutes and regulations.   

Hence it is of the essence that all applicable legal and industry best practice guidelines are reflected in corporate health, safety and environmental policy and practices.

The Internal Responsibility System (IRS)

The "Internal Responsibility System" (IRS) is a legal concept that collectively requires workers and employers to work together to maintain workplace health and safety.

Three essential rights of all workers derive directly from the IRS concept. These worker's safety rights include the right to know, the right to refuse and the right to participate.

The right to know infers that each and every worker has a right to be informed about any and all hazards that might affect them during their work. As such, employers are legally required to ensure that everyone granted access to a workplace receives sufficient training and advice with regard to all workplace hazards as well as their legal duties, rights and other obligations.

Under the auspices of the IRS Canadian workers also have the right to refuse work they perceive to be unsafe without fear of dismissal.

The final right, the right to participate demands that employer develop a plan that allows for individual and collective worker participation in all relevant matters that impact organizational health and safety.

As such employers must be able to prove to regulators, workers compensation providers and other stakeholders that they are aware of their legal and other compliance obligations and have taken all steps necessary and reasonable to comply. 

Canada's Criminal Code and the Application of the Concept of Criminal Laibility to Corporations, Executives, Managers and Supervisors:

When it comes to occupational heath and safety, corporations in Canada today face a daunting variety of legal and other sanctions should workers be subject to injury, illness or death as a result of proven negligence.

The IRS compliance benchmarks established in Ontario under the auspices of the OHSA presuppose that employers are proactively engaged in the day-to-day management of occupational health and safety to the best of their abilities and in conjunction with employees through the vehicle of joint occupational health and safety committees. Both the Ministry of Labour (MOL) and the Workplace Safety and Insurance Board (WSIB) actively share client information with each other to ensure that those employers with marginal health and safety records are localized and subject to heightened enforcement measures up to an including regular visits by both MOL inspectors as well as specially trained Workwell auditors on assignment with the WSIB.    

The Westray mine disaster of May 9th, 1992 represents a watershed in public opinion with regard to corporate liability for workplace accidents and fatalities. In 2004 Part VIII of Canada’s Criminal Code was amended under the auspices of Bill C-45.

Section 217.1 of the Criminal Code of Canada specifically requires that “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.” The passage of Bill C-45 in 2004 also saw the addition of Sections 22.1 and 22.2 to Canada’s Criminal Code which together impose criminal liability on an organization and its representatives for negligence [CCC Section 22.1] and other similar offences [CCC Section 22.2].

In the case of a less serious summary conviction offence (misdemeanor), these amendments to the Criminal Code of Canada foresee a maximum fine of $2,000 or 6 months in jail for individuals and a fine of up to $100,000.00 for organizations.

For a most serious indictable (felony) offense, the Criminal Code of Canada has imposed no ceiling on the levels of fines that can be imposed on an organization and an individual can, depending on the circumstances of the case, be subject to a sentence of life imprisonment. 

Whistleblower Provisons of the Criminal Code of Canada 

Section 425.1 of the Criminal Code of Canada contains a provision that makes it an offense for an employer to engage in reprisal actions against an employee that is intended to prevent the employee from contacting lawful authorities with regard to a real or perceived contravention of the law. This provision criminalizes the actions of an employer who has taken retaliatory action against an employee who has volunteered the details of a potential breach of either federal or provincial statute or regulation to an authority having jurisdiction. Section 425.1 of the Criminal Code of Canada has been in force since September 15, 2004.

The Case of the late Steve L’Ecuyer and the first convictions under Section 217.1 of Canada's expanded Criminal Code 

On October 11th, 2005 23-year-old Steve L’Ecuyer died on the job after being crushed by an industrial machine used to stack concrete blocks. Mr. L’Ecuyer was killed while attempting to clear a jam in the machine he was required to use to stack and bundle paving stones.

Investigators with the Quebec Ministry of Labour (Commission de la santé et de la sécurité du travail or CSST) determined that Mr. L’Ecuyer’s employer had been negligent by allowing him to operate the stacking machine with a disabled safety mechanism. The investigation by the CSST into Mr. L’Écuyer's death also revealed that he had not been given proper training on how to safely operate a machine which ultimately killed him.

On March 17th, 2008 Mr. L’Écuyer's employer, Transpave, plead guilty to a charge under Section 217.1 of the Criminal Code of Canada, the first such conviction in Canada under this new provision of the criminal code. During sentencing, Quebec court Judge Paul Chevalier also saw fit to impose a $110,000.00 fine on the Saint-Eustache, Quebec based paving stone manufacturer.

A second criminal conviction under Section 217.1 of the Criminal Code of Canada was entered against the owner of a Quebec based landscape company, Pasquale Scrocca, on September 27th, 2010. Mr. Scrocca was found guilty of the negligent maintenance and operation of a backhoe which led directly to the crushing death of one of his employees, Aniello Boccanfuso, on June 12th, 2006. Scrocca was sentenced to serve a conditional jail sentence of two years less a day to be served in the community with conditions, including a curfew. 
  

PROVINCIAL OH&S ACTS IN ONTARIO:
With the exception of industries working under Federal Jurisdiction, Canada's provinces and territories bear exclusive jurisdiction for the related issues of estblishing labour and employment standards. This it is Canada's provinces that are responsible for setting everything from minimum wages to enforcing health and safety standards.

  • Ontario Building Code Act, 1992
  • Ontario Environmental Protection Act, R.S.O. 1990, CHAPTER E.19
  • Ontario Fire Protection and Prevention Act, S.O. 1997, CHAPTER 4
  • Ontario Human Rights Code, R.S.O. 1990, CHAPTER H.19
  • Ontario Occupational Health and Safety Act
  • Ontario Technical Standards and Safety Act, S.O. 2000, CHAPTER 16
  • Ontario Workplace Safety and Insurance Act, R.S.O. 1990, CHAPTER W.11
  •  
SECTOR SPECIFIC HEALTH AND SAFETY REGULATIONS:
Four Sectors in Ontario operate under their own specific set of provincial health and safety regulations.
  • Construction Projects - Ontario Regulation 213/91
  • Health Care And Residential Facilities - Ontario Regulation 67/93
  • Industrial Establishments - Ontario Regulation 851
  • Mines And Mining Plants - Ontario Regulation 854, R.R.O. 1990

OTHER RELEVANT ONTARIO REGULATIONS:
Some of the most important regulations in Ontario from a health, safety and environmental compliance perspective include all of the following provincial regulations:  

  • Confined Spaces - Ontario Regulation 632/05
  • Control Exposure to Biological and Chemical Agents - Ontario Regulation 833
  • Designated Substances - Ontario Regulation 490/09
  • Fire Code - Ontario Regulation 213/07
  • First Aid Regulation - Ontario Regulation 1101
  • WHMIS - Ontario Regulation 860

CSA Health and Safety Standards 

The Canadian Standards Association (CSA) is one of the more prominent standards generating bodies in Canada. These private industry standards become legally applicable anywhere in Canada where they have been referenced in either statute or regulation

A short list of some of the most commonly applied industry best practice guidelines developed by CSA are included below:

CGSB/CSA-Z1610-11 - Protection of first responders from chemical, biological, radiological, and nuclear (CBRN) events.
CSA-Z1000-06 (R2011) - Occupational Health and Safety Management
CSA-Z1006-10 - Management of work in confined spaces
CSA-Z1002, Occupational health and safety – Hazards and risks – Identification, assessment, elimination and control
CSA-Z731-03 (R2009) - Emergency Preparedness and Response
CSA-Z1600-08 - Emergency management and business continuity programs
CSA-Z1004-12 - Workplace ergonomics - A management and implementation standard

CSA-Z94.3-07 - Eye and Face Protectors
CSA-Z94.3.1-09 - Selection, use, and care of protective eyewear
CSA-Z94.2-02 - (R2011) - Hearing Protection Devices - Performance, Selection, Care, and Use
CSA-Z94.1-05 - Industrial Protective Headwear - Performance, Selection, Care, and Use
CSA-Z180.1-00 (R2010) - Compressed Breathing Air and Systems
CSA-Z94.4-11 - Selection, use, and care of respirators
CSA-Z259.2.1-98 (R2011) - Fall Arresters, Vertical Lifelines and Rails
CSA-Z259.2.2-98 (R2009) - Self-Retracting Devices for Personal Fall-Arrest  
CSA-Z259.2.3-12 - Descent devices

CSA-Z259.1-05 (R2010) - Body Belts and Saddles for Work Positioning and Travel Restraint
CSA-Z259.10-12 - Full body harnesses
CSA-Z259.11-05 (R2010) - Energy Absorbers and Lanyards
CSA-Z259.12-11 - Connecting components for personal fall arrest systems (PFAS)
CSA-Z259.13-04 (R2009) - Flexible Horizontal Lifeline Systems
CSA-Z259.14-12 - Fall restrict equipment for wood pole climbing
CSA-Z96-09 - High-visibility safety apparel
CSA-Z96.1-08 - Guideline on Selection, Use, and Care of High-Visibility Safety Apparel
CSA-Z195-09 - Protective footwear
CSA-Z195.1-02 - Guideline on Selection, Care, and Use of Protective Footwear
CSA-Z611-02 (R2007) - Riot Helmets and Faceshield Protection
CSA-Z617-06 (R2011) - Personal Protective Equipment (PPE) for Blunt Trauma

FEDERAL JURISDICTION

Roughly 1.7 Million Canadians work under the auspices of Federal jurisdiction. This includes members of the federal public service. It also inlcudes indian reserves as well as a number of private sector employers involved in either international or interprovincial trade including banks, railways, shipping and transportation companies.  

FEDERAL STATUTES

The Part II of the Canada Labour Code addresses occupational health and safety most directly. However, Parts I and III also contain important safety and employment standards. 

  • Canada Labour Code, Part I
  • Canada Labour Code, Part II
  • Canada Labour Code, Part III  

FEDERAL REGULATIONS

The industry sector or activity undertaken by a federally regulated employer determines which of the following regulations apply. THE COSH regulations highklighted below are the regulations most commonly applied. In the case of many larger employers though safety policy may need to reflect the detailed requirements for each of the six major regulations referenced below.

  • Aviation Occupational Health and Safety Regulations, SOR/2011-87,
  • Canada Occupational Health and Safety Regulations [SOR/86-304], (COSH),
  • Oil and Gas Occupational Safety and Health Regulations, [SOR/87-612],
  • Maritime Occupational Health and Safety Regulations, [SOR/2010-120],
  • On Board Trains Occupational Safety and Health Regulations, SOR/87-184

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