One of the most vexing and controversial legal issues confronting safety professionals is the question of whether employers can be prosecuted for breaching external safety standards not referenced in the OHSA. It is common across Canada for legislatures to explicitly include Canadian Standards Association and other safety standards as part of OH&S legislation. In such cases, the provisions of the safety standard become part of OH&S legislation and employers are required to comply with the standard in the same manner as other provisions of the legislation.
Section 25(2)(h) of the OHSA (often referred to as the “general duty clause”) imposes an obligation on employers to take every precaution reasonable in the circumstances for the protection of workers. The Ministry of Labour often prosecutes employers for failing to take “reasonable precautions” which are not explicitly referenced in the OHSA. We have been asked by many clients over the years whether the Ministry of Labour can prosecute an employer for failing to take the “reasonable precaution” of complying with an external safety standard.
In a recent case, the Defendant volunteer fire department was charged with failing to take the reasonable precaution of activating an accountability system to track firefighters entering a burning structure. There are no relevant sector-specific regulations under the OHSA. However, the Ministry of Labour’s case relied heavily on an external standard prepared by the Ontario Fire Service Health and Safety Advisory Committee established under section 21 of the OHSA. The standard provided guidance to an employer about the importance of setting up a proper accountability system at a fire scene. The charge did not explicitly reference the external standard.
The Court held that the Crown had not proven the charge beyond a reasonable doubt and acquitted the Defendant. However, the Court went on to comment on the Defendant’s argument that it was an abuse of process to rely on the external standard. The Defendant argued that the explicit language in the standard made it clear that the standard did not represent a legal standard that the employer was expected to comply with. The standard included the following language:
“It should not be taken to be a statement of the law or what is necessary to comply with the law. A person with legal duties may or may not agree with this Guidance and there is no legal requirement to follow it. It is for each such person to decide what is necessary to comply with the OHSA and its regulations.”
The Defendant argued that the charges should not proceed as it was an abuse of process for the Ministry to rely on a document prepared under the auspices of the OHSA which clearly stated it was not meant to have the force of law. The Court did not rule on whether it accepted the Defendant’s argument, but did made the following statement,
“The court appreciates that crafting regulations that deal with emergency responders might be difficult for the government to accomplish, especially given the fluid, dynamic and unpredictable nature of the work of such responders. However, the government has had nearly two decades since the Port Colborne matter to grapple with these issues. This court, as indicated, is not deciding if this case does fit within the narrow category of the “clearest of cases” that warrant a stay. It would expect, though, that any future volunteer fire service defendant facing similar charges under the general duty section of the OHSA, based only on the Section 21 Guidelines, and any local SOGs flowing from them, would make a similar application for a stay.”
The Court appears to be suggesting that it would have seriously considered staying the charges in this case as an abuse of process on the basis that the Ministry of Labour was relying on an external safety standard not referenced in the OHSA to obtain a conviction. As the Court acknowledged, charges will only be stayed on the grounds of abuse of process in the “clearest of cases”. The Court seemed to be implying that the facts of this case might meet the high threshold for having the charges stayed.
There is no question that primarily basing a prosecution on an external safety standard that is not referenced in the OHSA raises a question of fairness. The fairness issue is magnified when the Ministry was involved in preparing the standard and the standard clearly states that there is no legal requirement to follow it. It should be noted that many external safety standards include standard disclaimer language indicating that the standard does not have the force of law and does not constitute advice with respect to legal compliance.
Employers should appreciate that the Court of Appeal has confirmed that it is appropriate for the Ministry of Labour to rely on the general duty clause to pursue prosecutions based on the failure to take precautions not explicitly required by the OHSA. It is our view that the Ministry of Labour is likely entitled to rely on external safety standards for the purpose of establishing that the precaution it is alleging should have been taken is “reasonable”.
However, it also seems clear that the fact an employer breached an external safety standard does not necessarily mean that it has breached the OHSA. Whether or not a specific precaution ought to have been taken is a question that needs to be assessed on the facts of each individual case. On other hand, compliance with an external safety standard would obviously be of great assistance to defending a charge under section 25(2)(h) but does not necessarily mean that an employer is compliant with the OHSA.
We have been involved in cases where the Ministry has sought to minimize the relevance of Guidelines it has published. The fact is that regardless of which party is relying on an external safety standard, compliance or non-compliance with the standard is only one factor in assessing whether or not the employer ought to have exercised a particular precaution.