“Every organization has to have an occupational health and safety program.”
Few safety professionals would argue with this statement. And, as a statement of values, it’s hard to refute. After all, to anybody who places a premium on safety the importance of “having an OHS program” is self-evident.
But in the business world in which the safety professional has to operate, notes Toronto OHS consultant Yvonne O’Reilly, having the right values doesn’t always translate into having the right safety program. “OHS programs cost a lot of money, time and administrative effort,” O’Reilly explains. “Simply appealing to values might not be enough to justify such an investment.” It often requires additional motivation to get a company to adopt an OHS program.
The fear of getting into legal trouble is one motivation for adopting an OHS program. But does the law really require companies to do this? In fact, it does. But it’s much more complicated than you might think. You can’t just march into a CEO’s office and say “we need an OHS program because the law requires it.” The CEO might call your bluff and ask you to “show me the law that says this.” That could put you in a bind, especially if you’re from a province like Alberta or New Brunswick. This article will get you out of the bind by explaining what the law does and doesn’t say about OHS programs and how, ultimately, you can make an ironclad legal argument for adopting an OHS program.
What Is an `OHS Program’?
Whether you’re trying to make the legal case for adopting a new program or justify an existing one, you first need to understand what an OHS program is. More precisely, you need to understand the difference between an “OHS program” and an “OHS policy.” Safety professionals tend to use the terms interchangeably; but while they might sound the same, there are important differences:
OHS Policy: An OHS policy is a written expression of principles. In the context of OHS law, an OHS policy is essentially a statement by senior management expressing the company’s commitment to protect the health and safety of its workers. Regulatory guidelines (from the Ontario MOL and federal HRSDC) also suggest that an OHS policy should indicate who within the company is responsible for various safety-related functions.
OHS Program: An OHS program is much more extensive than an OHS policy. It’s a fullblown, formal undertaking to identify and eliminate hazards at the workplace. The OHS laws that require companies to implement OHS programs set out the elements that those programs should include. Core elements that just about all provinces require include:
- Hazard assessment and identification;
- Training and education of workers;
- Incident reporting and investigation;
- Written work procedures;
- Keeping of safety records and statistics; and
- Regular review of how well the program is working.
Insider Says: One twist to be aware of: Several provinces, including BC, MB, ON and PE, say that an OHS program must also include an OHS policy statement that’s posted or available at the workplace.
What the Law Requires
To justify your safety program you need to be able to point to the law that says your company must have an OHS program. Such a legal requirement may come from one of three sources: the OHS laws of your province; court cases that interpret those laws; and criminal law. Let’s look at each of these in order of their importance to your case:
1. The OHS Laws
The most straightforward way to justify an OHS program is to point out the part of your province’s law that requires a company to adopt an OHS program. There’s just one problem: Not all the provinces actually include such a requirement in their OHS laws. In fact, when the OHS laws were first enacted, they didn’t say anything about companies having to implement an OHS program.
Luckily, this has changed. Ontario was one of the first provinces to make the adoption of a formal OHS program a specific requirement under OHS law. In recent years, most of the other provinces have followed suit, notes O’Reilly. The most recent and in some ways significant example of this is the federal jurisdiction. Bill C-12, which took effect on December 14, 2005, added a new section to the federal OHS law (more precisely, Part XIX of the Canada Labour Code) which requires all federally-regulated employers to put in place a formal OHS program.
But requirements regarding OHS programs still vary from province to province. There are three patterns:
The 4 Mandatory Program Provinces: Three provinces—ON, QC and SK—and the federal jurisdiction require all employers to implement a formal OHS program regardless of the company’s size or industry. Safety coordinators who come from these places should have a relatively easy time making the legal case for their programs.
The 2 Non-Mandatory Program Provinces: On the other side of the spectrum, there are two provinces where the OHS laws don’t expressly require a company to adopt an OHS program. In Alberta, a company doesn’t have to implement an OHS program unless the government specifically orders it to. In New Brunswick, companies with 20 or more workers only have to adopt an OHS policy, not an OHS program. If you come from one of these two provinces, you’ll have to refer to the case law (as described below) to justify your program.
The 8 ‘It-Depends’ Provinces: In four provinces—MB, NL, NS and PE—and all three territories, a company’s obligation to adopt an OHS program will depend on how many workers it has. In MB, NS and PE, the threshhold is 20 or more workers; in NL, NT and NU, it’s 10 workers or more. (In NL, companies that fall below the 10-workers’ cutoff must have an OHS policy instead of an OHS program.)
There are two jurisdictions—BC and YT—where the need to have a formal OHS program is based on a combination of number of workers and the degree of hazard associated with workplaces in the particular industry. In BC, for example, the threshhold for industries that are “low risk” is 50 or more workers; if the industry is not “low risk,” the threshhold is 20 or more workers.
2. Court Cases & the Due Diligence Factor
Obviously, it’s a lot simpler to justify an OHS program when your province’s law says you need one. But even if it doesn’t, you can still make not just a strong but an overwhelming legal case. That’s because according to court cases interpreting the OHS laws, there is an implied legal obligation on the part of practically all companies to have some kind of formal OHS program.
The implied obligation is based on the due diligence rule. In plain language, it’s almost impossible to meet due diligence if you don’t have an OHS program.
Explanation: If you’re ever prosecuted for an OHS violation, your liability may turn on whether you can prove due diligence–that is, took all reasonable measures to follow the law and protect your workers against foreseeable risks. This rule doesn’t come from the OHS laws; the statutes and regulations never even mention the term “due diligence.” It’s a rule that judges made up to decide if a company or official that violated an OHS law should be held guilty of an offence.
Having an OHS program in place is part and parcel of due diligence. Who says? The Canadian Supreme Court says–in R. v. Sault Ste. Marie (City), the famous case that first established the due diligence defence. According to the Court, one of the most important factors in due diligence is whether the accused developed “a proper system to prevent commission of the offence.”
Later cases have made it crystal clear that by “proper system,” the Court meant the kinds of policies and procedures to identify and eliminate risks that form the essence of a formal OHS program. Here are just two examples of cases showing how important OHS program is to due diligence:
Company with OHS Program Wins: A Saskatchewan worker reaching into a grinding machine to remove some debris gets his arm caught. His arm is severed at the shoulder. The prosecutor shows that the company violated machine guarding regulations. But the company proves that it showed due diligence and is found not guilty. The court cites, among other things, the company’s extensive OHS program [R. v. James Metals, Inc.].
Company without OHS Program Loses: An Ontario worker loses three fingers after getting his hand caught in the chain drive of a steel roller that carries wafer boards off a conveyor belt. The prosecution shows that the company didn’t properly guard the drive mechanism of the belt. The company claims due diligence—but loses. The court cites all the things that the company should have done but didn’t, such as develop written safety procedures and provide full training. These omissions had something in common: They’re essential elements of an OHS program. So, in effect, the court was saying that the company was guilty because it didn’t have an OHS program [R. v. Grant Forest Products Inc.].
3. Criminal Law & the C-45 Factor
The third place to find a legal obligation to adopt an OHS program is the Canadian Criminal Code and Bill C-45. The C-45 argument has two major advantages:
- Unlike the OHS laws, C-45 applies in every province and territory; and
- Criminal penalties under C-45 are potentially much more serious than penalties for OHS offences, including most notably, the risk of lifetime imprisonment to company officials.
The downside of using C-45 to justify the adoption of an OHS program is that the odds of being prosecuted under C-45 are very remote. Routine safety offences aren’t enough; there must be death or a serious injury and proof that the company and/or its officials showed “wanton or reckless disregard” of the person’s safety.
On the other hand, avoiding liability under C-45 is a legitimate and powerful argument for adopting an OHS program. C-45 does not say that a company needs an OHS program. All it says is that it must take “reasonable steps” to protect workers and others affected by the work. But there’s little doubt that prosecutors would point to the absence of an OHS program as evidence of a company’s failure to take reasonable steps. Moreover, O’Reilly adds, lack of a program is evidence of wanton or reckless disregard of safety. “A company that doesn’t have an OHS program will have an extremely hard time arguing that it exercised the kind of care the law requires, especially if the company is large, in a hazardous industry or has a history of accidents,” O’Reilly explains.
What this all means is that adopting an OHS program really is a legal requirement after all. That’s comforting to know if you’re from a big company with a lot of resources.
But if you’re from a small company or in an industry that’s not particularly hazardous, the obligation to have an OHS program might not seem like good news at all, especially if it involves spending a lot of money and developing an elaborate system. Relax. That’s not what the obligation to have an OHS system is all about. All it requires you to do is make a conscious and continuous effort to carry out basic safety functions as best you can in accordance with your company’s size, resources and risks. In sum, this is a reasonableness standard, not a gold standard.
Yvonne O’Reilly, CRSP: O’Reilly Health & Safety Consulting, 24 Southport St., Toronto, ON M65 4Z1, www.ohsconsulting.ca. (416) 294-4141.
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R. v. Sault Ste. Marie (City), (1978) D.L.R. (3d) 161 (S.C.C.).
R. v. James Metals Inc., (1999) 43 W.C.B. (2d) 20 (Sask. Prov. Ct.)
R. v. Grant Forest Products Inc., (2002) 98 C.R.R. (2d) 149 (Ont. C. J.)