COHS 208 Module 1 - Study Exam 1-6 PDF

COSH 208 Module 1 What is Law? - Law: a set of rules made by the government (legislature) that are enforceable in the court of law. - The law plays a significant role in everyday life, influencing how people act and interact in society. - Unlike customs, traditions, religions, manners, or morality, which are voluntary social controls, the law is mandatory and backed by sanctions for non-compliance. - Law serves as a formal mechanism of social control, deterring harmful behaviours like murder or robbery and maintaining public order by punishing wrongdoers. - It also xz such as enforcing contracts, and ensures safety in the workplace by holding employers and employees accountable. - Law is characterized by principles like reason, certainty, force, neutrality, and non-retroactivity. The Concept of Justice - The concept of justice differs from the concept of law, though the goal of law should be to ensure justice. - Laws are government-enforced rules, but historically, laws have sometimes resulted in injustices, such as slavery laws in the U.S. and residential school laws in Canada. - For a law to be just, it must be considered not only in its content but also in its creation and enforcement, as even a good law can lead to injustice if enforced improperly. - There are four key types of justice: - Corrective Justice: Ensures fairness when someone breaks an agreement, making sure the wronged person is compensated; Communicative and Compensatory. - Distributive Justice: Ensures fair sharing of things, like opportunities or rewards, based on specific criteria, such as merit. - Retributive Justice: Ensures punishments match the crime. Small crimes shouldn’t be punished as harshly as serious ones. - Procedural Justice: Ensures fair treatment in decision-making by giving both sides a chance to be heard and following fair procedures. - These types of justice aim to make sure that laws are applied fairly and equally to everyone. The Rule of Law and Due Process - The Rule of Law is a key principle in Canada, meaning that no one is above the law and everyone is treated equally by it. The law applies to everyone, regardless of status, and people can only be punished for breaking laws that exist at the time of their actions. Legal decisions must be made in an open court, where the accused can defend themselves, and punishments should fit the crime. - Due Process ensures the rule of law is followed. It guarantees that legal proceedings are fair, protecting the rights of individuals. Those accused must be informed of the charges and have the chance to be heard. This fairness applies to courts and government bodies, ensuring all actions are reasonable and just. Origin of Canadian Law and Legal Traditions - Canadian law is shaped by three main traditions: civil law, common law, and Aboriginal law. However, this discussion focuses on civil law and common law, which directly impact Occupational Health and Safety (OHS) laws in Canada. - Civil Law: Originating from French colonization, civil law is inquisitorial. This means judges actively investigate cases and rely on written codes of law that must be followed. It's praised for its clarity and predictability but criticized for being rigid. - Common Law: Originating from England, common law is adversarial and accusatorial. Parties in a case present evidence and argue their positions, while judges act as neutral referees. The concept of precedent, where past judicial decisions guide current cases, is central. Common law is flexible and adapts to societal changes, but it now mainly deals with torts (private wrongs) and contracts (agreements). - Other Types of Laws: - Constitutional Law: Governs the relationship between citizens and the government. - Criminal Law: Sets punishments for serious crimes like murder and robbery. - Regulatory Law: Regulates behaviors that are not criminal but still need oversight, such as traffic rules and OHS regulations. - As legal systems evolved, common law's scope narrowed, and specialized laws like constitutional, criminal, and regulatory law emerged. Classification of Law: - Law is generally divided into two main categories: - Public Law: This involves interactions between the government and individuals or between governments. It includes: - Constitutional Law: Covers how the government is structured and what rights citizens have. - Administrative Law: Deals with how government agencies operate and make decisions. - Criminal Law: Focuses on crimes and the punishments for them. - Private Law: This governs relationships between private individuals. It is also known as civil law in this context, which is different from its historical meaning. It includes: - - Contracts: Rules about agreements made between individuals that are legally enforceable. - Torts: Provides a way for people to get compensation if they’ve been harmed by someone else’s actions, like in cases of negligence. - Property Law: Covers issues related to property, whether it’s physical items like land or intangible things like intellectual property. Constitutional Law and Jurisdiction for OHS - Constitutional Law is the highest form of law in a country. It sets the framework for all other laws and ensures they conform with its principles. Any law that conflicts with constitutional law is considered invalid. - In Canada, the Constitution is the supreme law, as outlined in Section 52 of the Constitution Act, 1982. For example, the Supreme Court has confirmed that the Constitution, including the Charter of Rights and Freedoms, takes precedence over other laws. If a law contradicts the Constitution, it is void. - Constitutional law defines the powers and authority of the organs of the state (that is, the executive, legislature, and judiciary) and the rights of citizens. Canada has a federal system where power is divided between the federal government and provincial or territorial governments. Federal laws apply nationwide, while provincial or territorial laws apply only within their respective areas. - Canadian constitutional law is found in legislation and case law. Key pieces of constitutional legislation include: - 1. **Constitution Act, 1867** (formerly known as the British North America Act, 1867): This established the federal system in Canada. - 2. **Constitution Act, 1982**: This includes the Canadian Charter of Rights and Freedoms and affirms the Constitution's supreme status. - The Supreme Court has highlighted that the Constitution is built on fundamental principles such as federalism, democracy, constitutionalism, and respect for minorities. The Constitution Act, 1867 - The Constitution Act, 1867 is crucial for understanding how Occupational Health and Safety (OHS) laws are regulated in Canada. - Federal Jurisdiction: Section 91 of the Act lists industries under federal control. The federal government, through Parliament, makes laws for these industries, including OHS laws. The Canada Labour Code, Part II, which covers OHS for federally regulated industries, is enforced by health and safety officers of the Labour Program. - Provincial and Territorial Jurisdiction: Section 92 outlines industries under provincial and territorial control. Each province and territory creates its own OHS laws for these industries. For example, in Ontario, the Ministry of Labour, Training and Skills Development enforces the OHS Act. - Peace, Order, and Good Government (POGG): Section 91 also allows Parliament to make laws on subjects not specifically listed in Section 91 or 92. This means Parliament can address new or unforeseen issues as long as they are not within the exclusive powers of the provinces or territories. - The Constitution Act, 1867 divides responsibilities between federal and provincial/territorial governments, affecting how OHS laws are implemented and enforced across Canada. The Constitution Act, 1982 - The Constitution Act, 1982 is crucial for understanding rights and freedoms in Canada, and it has significant implications for Occupational Health and Safety (OHS) professionals. - Key Sections of the Canadian Charter of Rights and Freedoms: - Section 1: Guarantees rights and freedoms, with some limits to ensure they are balanced with the needs of a democratic society. - Section 2: Fundamental Freedoms, including: - Freedom of conscience and religion - Freedom of thought, belief, opinion, and expression (including the press) - Freedom of peaceful assembly - Freedom of association - Sections 3–5: Democratic Rights, such as the right to vote. - Section 6: Mobility Rights, allowing individuals to move and live anywhere in Canada. - Sections 7–14: Legal Rights, including rights to a fair trial and protection against arbitrary detention. - Section 15: Equality Rights, ensuring everyone is treated equally under the law. - Constitutional Law and OHS: The Charter’s provisions also affect OHS laws and workplace practices. For example, in the case Loomba v. Home Depot Canada, Mr. Loomba claimed he was discriminated against because he was required to wear a hard hat, which conflicted with his religious beliefs. The tribunal found that the enforcement of the hard hat rule was discriminatory under the Human Rights Code because it conflicted with Mr. Loomba’s right to practice his religion. - Commentary: This case highlights the need for OHS professionals to balance health and safety regulations with human rights considerations. Ensuring compliance with OHS requirements while respecting individual rights, as guaranteed by the Charter, is crucial for fair and effective workplace management. The Crown - The Crown is a key concept in Canada's constitutional monarchy. It represents the authority of the Canadian state in various legal and governmental functions. - Representation: - Federally: The Crown is represented by the Governor General of Canada, who acts on behalf of the reigning monarch (currently Queen Elizabeth II) and gives assent to bills passed by Parliament. - Provincially: In provinces, the Crown is represented by Lieutenant Governors who give assent to bills passed by provincial legislatures. - Territorially: In territories, Territorial Commissioners perform similar duties. - Criminal and Regulatory Prosecutions: - Criminal and regulatory offenses are prosecuted in the name of the Crown. The prosecutors who handle these cases are referred to as "the Crown." - In court cases, criminal prosecutions are labeled as "R. v. [Name]" where "R" stands for Regina (if the reigning monarch is female) or Rex (if male). This reflects that the prosecution is conducted on behalf of the monarch. - Did You Know?: - In the United States, criminal prosecutions are represented as "USA v. [Name]" or "State v. [Name]," reflecting that the source of sovereign power is "the people" rather than a monarchy. Separations of Power: - Separation of Powers is a fundamental principle in Canadian constitutional law that divides state powers among three distinct branches of government. This ensures that no single branch has too much power, promoting checks and balances within the system. - The Three Branches of Government: - Executive: - Who: The Prime Minister, the Cabinet, and the civil service bureaucracy. - Role: Manages the day-to-day operations of the country. Handles areas such as foreign affairs, international trade, and defense. - Legislative: - Federal Level: The Parliament of Canada, which includes: - House of Commons: Elected members who create laws. - Senate: Appointed members who review and propose changes to legislation. - Provincial/Territorial Level: Each province and territory has its own legislative assembly, consisting of elected members who make laws for their specific region. - Reference: Section 91 of the Constitution Act, 1867 for federal powers and Section 92 for provincial and territorial powers. - Judicial: - Who: Courts, judges, lawyers, and other court officers. - Role: Interprets laws, protects rights guaranteed by the Constitution, and develops common law through legal precedents. - The Crown symbolizes the source of state power in Canada, with the Governor General, Lieutenant Governors, and Territorial Commissioners representing the Queen at different levels of government. This separation helps to balance power and prevent abuse, ensuring a fair and just system of governance. Intra and Ultra Vires - Intra Vires and Ultra Vires are terms used to describe whether actions taken by government bodies are within or beyond their legal powers. - Intra Vires: - Meaning: "Within the powers." - Description: When a government agency or department acts within the scope of its legal authority or power as defined by law or the Constitution. For instance, if a provincial legislature creates laws about local schools, it is acting intra vires because education falls under provincial jurisdiction. - Ultra Vires: - Meaning: "Beyond the powers." - Description: When a government body exceeds its legal authority or acts beyond the powers granted to it by law. For example, if the federal Parliament tries to pass laws regulating local zoning laws (a provincial matter), it would be acting ultra vires. - Checks and Balances: - The courts ensure that all government actions are within the scope of their authority. If a court finds that an action is ultra vires, that action is considered null and void. - Examples: - Federal Powers: Govern postal services (Constitution Act, 1867, Section 91). - Provincial Powers: Govern municipal institutions (Constitution Act, 1867, Section 92). - If a federal law tried to regulate something within the provincial jurisdiction, such as municipal matters, it would be ultra vires and invalid. - Lawmaking Process In Canada, laws are created through a structured process at both federal and provincial levels. Here’s a simplified overview using the example of Manitoba’s provincial process: Federal and Provincial Lawmaking - Federal Level: The Parliament of Canada makes federal laws. - Provincial Level: Provincial legislative assemblies (e.g., Manitoba’s Legislative Assembly) make laws for their respective provinces. Occupational Health and Safety (OHS) Laws - Federal: Governed by the Canada Labour Code, Part II. Enforced by health and safety officers from the Labour Program of Human Resources Development Canada. - Provincial: Each province has its own OHS laws, such as Ontario’s Occupational Health and Safety Act, enforced by provincial inspectors. Provinces also have workers' compensation laws, like Ontario’s Workplace Safety and Insurance Act. How a Bill Becomes Law (Example: Manitoba) Notice: A bill must be announced in the Notice Paper one day before it is introduced. Introduction and First Reading: An MLA (Member of the Legislative Assembly) introduces the bill, which is read for the first time. This stage is not debatable but provides a brief explanation of the bill. Second Reading: The bill is debated. If accepted, it means the assembly supports the general idea of the bill. Committee Stage: The bill is reviewed in detail by a committee. Public input is allowed. Amendments can be proposed and discussed. Report Stage: The bill, with or without amendments from the committee, is considered by the whole assembly. Further amendments can be proposed. Concurrence and Third Reading: The bill is debated in full. If accepted, it passes to the final stage. Royal Assent: The bill must receive Royal Assent from the lieutenant governor (or an appointed representative) to become law. The bill may not take effect immediately; the effective date is specified in the bill or determined later. Comments Thoughtfulness: The process involves thorough consideration and debate. Royal Assent: It’s the final step where the bill is officially enacted. Though rare, the governor general or lieutenant governor can withhold Royal Assent. Variation: While the Manitoba process is detailed here, other provinces have similar procedures. Look up specific provincial processes for details. Federal Process: At the federal level, bills are introduced in the House of Commons, debated, and then passed to the Senate for review. Both houses must pass the bill before it receives Royal Assent. This process ensures laws are carefully reviewed and considered before becoming effective. Sources of OHS Laws in Canada Occupational Health and Safety (OHS) laws in Canada come from several sources: 1. Legislation - Definition: Known as “acts,” these are primary laws created by Parliament or provincial legislatures. - Examples: - Federal: Canada Labour Code, Part II. - Provincial: Occupational Health and Safety Act (Ontario), Workplace Safety and Health Act (Manitoba). - Workers' Compensation: Workplace Safety and Insurance Act (Ontario), Workers’ Compensation Act (other provinces). - Role: Sets the intent of lawmakers. Violations lead to fines or imprisonment. 2. Regulations - Definition: Detailed rules made under an act by government departments or agencies. - Role: They explain how the act should be implemented in practice. For example, regulations detail the use of personal protective equipment. - Authority: Derived from the act they support and are enforceable just like the act. 3. Case Law - Definition: Also known as common law, created by judges through their decisions. - Role: Judges interpret and apply legislation. Their decisions set precedents for future cases. - Key Point: Courts often follow previous interpretations of laws, making case law a critical source of OHS law. 4. Guidelines - Definition: Non-legal recommendations that suggest best practices. - Role: Not mandatory but may influence legal standards. Courts may use them to determine if an employer has acted reasonably. - Examples: Guidelines from organizations like the Ontario Ministry of Labour, Canadian Standards Association (CSA), and Technical Safety Standards Association (TSSA). Key Points - Legislation vs. Case Law: Acts are superior to case law, but case law helps interpret and apply legislation. - Regulations vs. Acts: Regulations provide specific details on implementing acts and have the same legal force. - Guidelines: They are influential and can be adopted into legislation, carrying the same weight as laws. Understanding these sources helps ensure compliance with OHS laws and regulations. MODULE 2: Statutory Interpretation Explained Statutory Interpretation Summary: The judicial branch, including courts and judges, is uniquely responsible for interpreting legislation and regulations. This role helps clarify the meaning of laws and guides the executive branch and the public. For example, through case law (court decisions), the courts determine if a worker is an employee or independent contractor under the Occupational Health and Safety (OHS) Act by interpreting factors like employer control, ownership of tools, and risk of profit or loss. Rules of Statutory Interpretation: 1. Textualism (Literalism): Judges look at the exact words of the law and apply their plain, ordinary meaning. They assume the words alone reflect what lawmakers intended. 2. Intentionalism: Judges try to figure out what the lawmakers meant when they wrote the law, even if that means looking beyond the words of the law itself to things like speeches or other evidence. 3. Pragmatism (Purposive Approach): Judges focus on the purpose of the law, thinking about why it was made and what it aims to achieve. They consider the bigger picture, including the effects of their interpretation and how it fits with society’s values..Stare Decisis Summary: Stare decisis, or the doctrine of precedent, is a key principle in common law. It means that courts should follow legal rules established in earlier cases to ensure consistency and predictability. It allows individuals to reasonably expect similar outcomes in cases with similar facts. Stare decisis applies when: 1. The facts of the current case are closely analogous to a previous case. 2. The earlier decision comes from a higher court in the judicial hierarchy. 3. The key legal reasoning (ratio) from the previous case is applicable. Key Point: Judges can distinguish cases if they find significant differences, in which case the earlier decision may not apply. Types of Precedents: 1. Binding Precedent: Courts must follow earlier decisions from higher courts (e.g., decisions from the Supreme Court of Canada are binding on all Canadian courts). Provincial appeal court decisions are binding within that province but not in others. 2. Persuasive Precedent: Earlier decisions from other jurisdictions or lower courts are not binding but may influence a judge’s decision. Judges may refer to these decisions but are not required to follow them (obiter). Check up (P1): You have completed the exercise! Below is a list of correct matches: Textualism The court will look at the ordinary plain meaning of the words used. Intentionalism The court will be willing to consider any evidence that is relevant and reliable even beyond the legislation being considered. Pragmatism The court will seek to understand and uphold the intention of the legislature in deference to the doctrine of “separation of powers.” Persuasive Precedent Court decisions may be considered but need not be followed. Binding Precedent Requirement to follow previous court decisions. Canada’s Court System and Tribunals Summary: Canada’s court system operates in a hierarchical structure, which is important for understanding how the doctrine of stare decisis (precedent) works. The system is generally divided into four levels: 1. Supreme Court of Canada: This is the highest court in the country. Its decisions are binding on all lower courts. It hears appeals from provincial and territorial courts of appeal as well as the Federal Court of Appeal. Appeals to the Supreme Court require "leave to appeal," except in certain criminal cases. 2. Provincial and Territorial Courts of Appeal and the Federal Court of Appeal: These courts review decisions from lower courts (superior courts) and provide judicial opinions. 3. Provincial and Territorial Superior Courts: These courts handle serious criminal cases and hear appeals from lower courts. They are established under section 96 of the Constitution Act, 1867. 4. Provincial and Territorial (Lower) Courts: These courts deal with most day-to-day cases, including preliminary criminal and civil matters. They are trial courts, and their decisions can be appealed to superior courts. Federal Court and Federal Court of Appeal: The Federal Court deals with cases involving federal matters. Appeals from this court go to the Federal Court of Appeal, which also hears appeals from federal tribunals and special courts. Figure 1.1: Canada’s court system Tribunals: Tribunals are specialized bodies created by legislation to deal with specific issues like labor disputes or human rights. Although tribunals are not bound by the doctrine of stare decisis, they often consider court decisions as persuasive. Tribunal decisions can be challenged in court through judicial review, based on: Lack of authority to decide. Unfair processes. Irrational or unreasonable decisions. Even when a finality clause in legislation (like Ontario’s Workplace Safety and Insurance Act) states that a tribunal’s decision is final, judicial review may still be possible in cases of procedural unfairness. Ratio and Obiter Dictum Summary: Ratio Decidendi (Ratio) and Obiter Dictum (Obiter) are important legal concepts, especially for an OHS professional. They are essential for understanding how court decisions influence future cases through the doctrine of stare decisis. Sections of an OHS Case: Case Name: Identifies the case, often by the names of the litigants. In criminal cases, "R" (representing the Crown) is used, as criminal prosecution in Canada is brought in the name of the Crown. Facts: The judge outlines the basic details of the case (who, what, where, when). Issue(s): The legal question(s) that the court needs to resolve, often seen in appellate cases. Holding: The decision of the court, along with the legal reasoning or rationale behind it. Ratio Decidendi (Ratio): Ratio refers to the legal principle or reasoning on which the court's decision is based. It is the part of the case that sets a precedent, meaning it must be followed by courts in future cases with similar facts. It has binding precedential value. Obiter Dictum (Obiter): Obiter refers to comments made by a judge that are not essential to the court's decision. These statements may provide additional insights or analogies, but they do not have binding legal authority. While helpful for understanding legal concepts, obiter does not establish legal principles and is not binding on future cases. The ratio is what OHS professionals and courts need to focus on, as it impacts future rulings, while obiter may provide useful context but holds no binding force. In short: Ratio = The part of the case that sets a rule for future cases. Obiter = Extra comments that don't have to be followed in future cases. Simplified Explanation of Strict and Absolute Liability: Strict and Absolute Liability are types of offences where you can be held responsible even if you didn’t intend to do anything wrong (no need for "mens rea," which means intent or a guilty mind). Example: Imagine you're driving and run a red light. It doesn't matter if you were in a rush or didn't mean to do it—just the fact that you ran the red light (the "actus reus" or action) is enough to get a ticket. The law doesn't care why you did it. The Ontario Highway Traffic Act says you must stop at a red light, and if you don't, you could be fined. The intention doesn't matter, only the fact that you broke the rule. Categories of Offences (from R v. City of Sault Ste-Marie ): 1. Pure Crimes: These are serious offences where the Crown must prove both the action (actus reus) and the intent (mens rea), like theft or assault. 2. Strict Liability: For these offences, the Crown only needs to prove the action (actus reus). There’s no need to prove intent (mens rea). However, the accused can defend themselves by showing they took reasonable care to avoid breaking the law (this is called the due diligence defence). These are usually regulatory offences, like those found in traffic or OHS laws. 3. Absolute Liability: In these cases, once the action is proven, there’s no defence. The accused cannot claim they took reasonable care. The mere fact that the law was broken is enough for conviction. OHS Laws: Occupational Health and Safety (OHS) laws are strict liability offences. This means that the government only needs to prove that the employer or worker broke a safety rule, not that they intended to do so. However, they can use the due diligence defence if they can show they took all reasonable steps to follow the rules. Vicarious Liability (Respondeat Superior) – Simplified Vicarious liability means that an employer or someone in charge can be held responsible for the actions of their employees or agents. Even if the employer didn’t personally do anything wrong, they can still be liable if their employee caused harm while doing their job. This concept is based on fairness and the idea that employers should take steps to reduce risks in the workplace. Chief Justice McLachlin's Explanation (from John Doe v. Bennett ): Why vicarious liability exists: If an employer or principal puts something risky into the community (like a business), they should be held responsible if that risk leads to harm. Two things must be proven: 1. There’s a close relationship between the person who did the harm (the employee) and the employer. 2. The wrongful act is connected to the employee’s work. This concept helps ensure compensation for victims and deterrence to prevent future harm. When Vicarious Liability Applies: 1. Recognized Relationship: The relationship (like employer-employee) must be legally acknowledged. 2. Act During Employment: The harmful act must happen while the employee is doing their job or something the employer authorized. 3. Employer’s Control: The employer controls when, where, and how the employee does their work. Respondeat Superior: This legal principle holds employers responsible for their employees’ negligent actions. If an employee's work benefits the employer (even if they take shortcuts), the employer is responsible for any harm caused. In workers' compensation law, this idea of holding employers liable without fault is a reflection of respondeat superior, ensuring workers are compensated for workplace injuries regardless of who is directly at fault. Prosecutions and Lawsuits – Simplified Prosecution: Public Law: Prosecution deals with public law, where the state (represented by the Crown) takes legal action against someone for breaking the law. Examples: Crimes like murder, sexual assault, and robbery. OHS Act: Prosecution under the Occupational Health and Safety (OHS) Act is also public, since workplace safety violations affect society. Penalties: Can involve imprisonment, large fines, or both. Mens Rea: For serious crimes, the Crown usually needs to prove mens rea (intent). However, for regulatory offences (like OHS violations), intent does not need to be proven. Lawsuits: Private Law: A lawsuit is a legal dispute between two private parties, which can include individuals, companies, or government agencies. Examples: Contract disputes and personal injury claims (tort law). Scenario: If you’re harmed, like being bitten by a dog, you can sue the dog's owner for damages. In short, prosecution deals with criminal offences under public law, while lawsuits are private legal disputes. Criminal Law – Simplified Overview Criminal Law is a branch of public law that deals with punishing serious crimes to protect society. Key Aspects: Federal Jurisdiction: In Canada, criminal law is controlled by the federal government through the Criminal Code of Canada. Example of a Crime: Murder is defined in Section 229(a) as causing death with the intent to kill or cause harm that leads to death. Criminal Punishment Theories: 1. Utilitarianism: ○ Focuses on the benefit to society. ○ Punishment should lead to positive outcomes for the largest number of people. 2. Retributivism: ○ Believes in punishing someone because they deserve it, not for the societal benefit. ○ It's about justice and giving offenders what they deserve. Most systems combine these two views to balance justice and societal benefit. Proportionality in Punishment: Punishment should fit the crime. It would be unfair to give a light sentence for a severe crime or vice versa. Deterrence: Punishment also aims to deter future crimes: 1. Specific Deterrence: Discourages the offender from repeating the crime. 2. General Deterrence: Sets an example to prevent others from committing similar crimes. Elements of a Crime: Two major elements must be proven in any criminal case: 1. Actus Reus (The Action): ○ The act or failure to act that breaks the law. 2. Mens Rea (The Intent): ○ The intent or mindset behind the action, such as recklessness or negligence. Both actus reus and mens rea must be proven beyond a reasonable doubt for a conviction, reflecting the principle: "The act alone doesn’t make someone guilty unless the mind is also guilty." Presumption of Innocence In a criminal justice system, every accused person is considered innocent until proven guilty. This principle protects individuals from being unjustly punished. It’s rooted in common law and is also a right under the Canadian Charter of Rights and Freedoms (Section 11(d)). Key Point: The accused has the right to a fair and public hearing where their guilt must be established by an impartial tribunal. Burden of Proof The burden of proof refers to the responsibility to prove the guilt of the accused. In a criminal trial, this responsibility rests entirely with the Crown (the prosecutor). In contrast, in a civil trial, the person making the claim (the plaintiff) has the burden of proving their case. Standard of Proof The standard of proof is the level of certainty required to meet the burden of proof: In a criminal trial, the standard is "beyond a reasonable doubt"—meaning the evidence must leave no reasonable doubt about the accused’s guilt. In a civil trial, the standard is lower: the plaintiff must show that their claim is "more likely than not" true, also known as a preponderance of evidence. This distinction is important because criminal cases often involve more severe consequences, requiring a higher level of certainty. Jurisdiction and Types of Jurisdiction Jurisdiction refers to the authority or power given to a government body or agent by law to make decisions, enforce laws, and govern over certain areas or subjects. In Canada’s federal system, there are two levels of government: federal and provincial/territorial, each with its own jurisdiction defined by the Constitution Act, 1867 (formerly the British North America Act) and the Constitution Act, 1982. The three branches of government—legislative, judicial, and executive—have clearly defined roles: Legislature: Makes laws. Judiciary: Interprets laws and decides cases. Executive: Enforces laws and manages day-to-day affairs. Two Key Types of Jurisdiction 1. Geographic Jurisdiction ○ Definition: Refers to the authority a government body or official has over a specific geographic area. ○ Example: The Ontario legislature makes laws for Ontario, which are enforceable only within the province. Laws created in Ontario cannot apply to British Columbia or other provinces. 2. Subject Matter Jurisdiction ○ Definition: Refers to the authority over specific topics or issues, as divided between the federal and provincial governments. ○ Example: The Criminal Code of Canada is a federal responsibility, while healthcare falls under provincial jurisdiction. Jurisdiction in Occupational Health and Safety (OHS) Different OHS regulators have specific jurisdictions: Ministry of Labour, Training and Skills Development (MLTSD) Inspectors (Ontario) have authority over workplaces governed by provincial law. Health and Safety Officers (HSOs) under the HRSDC Labour Program operate under federal law (Canada Labour Code, Part II) and regulate federally regulated workplaces. Key Point: If an official acts outside their jurisdiction (ultra vires), such as an Ontario inspector attempting to enforce laws in a federally regulated workplace, their actions can be legally challenged as unauthorized. Intra Vires and Ultra Vires Intra vires: Acting within legal powers. Ultra vires: Acting beyond legal powers. For instance, a Ministry of Labour inspector attempting to regulate a federal workplace would be acting ultra vires, which makes their actions invalid. Understanding jurisdiction is essential for knowing which authority governs specific laws and who enforces them within a given location or area of law. Negligence, Recklessness, and Criminal Negligence Understanding the concepts of negligence, recklessness, and criminal negligence is crucial in Occupational Health and Safety (OHS) law. While these terms may seem straightforward, they have specific legal meanings that differ from everyday usage. Negligence Negligence is defined legally as a breach of a duty owed to another person that results in harm or loss. It’s one of the most common torts in civil law, where a "tort" refers to a wrongful act leading to legal liability. To establish a case of negligence, the plaintiff (A) must prove four elements against the defendant (B): 1. Duty of Care: B owed A a duty (this duty can arise from statutes, common law, or specific relationships). 2. Breach of Duty: B breached this duty. 3. Causation: B's breach caused harm or loss to A. 4. Connection: The harm suffered by A must be directly connected to B's breach (this is called causation). If A can prove these elements, the court may award damages. The standard of proof in civil cases is a "preponderance of evidence," meaning it must be "more likely than not" that A's claims are true. Reasonable Person Test: Courts apply a standard of what a "reasonable person" would do in similar circumstances to evaluate negligence. This is an objective measure, not subjective. Who is a Reasonable Person?: A reasonable person is an ordinary individual who is sane, knowledgeable, and objective. In professional contexts, such as medicine or engineering, the standard applies to a "reasonable professional" in that field. Recklessness Recklessness, often considered gross negligence, represents a higher degree of negligence. It applies when a person knows or should know their actions could harm others but proceeds anyway. Example: A driver speeds at 80 km/h in a 40 km/h school zone during peak hours, showing a disregard for the safety of children. A reasonable driver would know that such behavior endangers others. Criminal Negligence Criminal negligence is a severe form of recklessness and is subject to criminal charges. Under the Criminal Code of Canada, it is defined as exhibiting "wanton or reckless disregard for the lives or safety of others." Example: The same speeding driver could face criminal negligence charges because their actions demonstrate a blatant disregard for the safety of children in the school zone. Summary Negligence involves a breach of duty resulting in harm, requiring proof of duty, breach, causation, and connection. Recklessness involves knowingly taking risks that can harm others, typically assessed at a higher threshold than ordinary negligence. Criminal Negligence is an even more serious offense, indicating a reckless disregard for safety that can lead to criminal charges. Module 3: Introduction Occupational health and safety (OHS) in Canada is strictly regulated to prevent workplace injuries and fatalities. Each province and territory has laws covering both provincially and federally regulated workers, along with workers' compensation systems. In the past, injured workers had to sue their employers for compensation, relying on proving negligence in court. Many workers struggled to win these cases due to legal defenses employers could use, along with the high costs and challenges of litigation. To understand how OHS has evolved, we'll look at historical and modern cases and review the history of workers' compensation laws in Canada. Examination of Historical Cases in OHS (Simplified) In Canada, every province and territory has workers’ compensation laws and Occupational Health and Safety (OHS) legislation. These laws outline the responsibilities of employers and the powers of government agencies that enforce safety standards. For example, Ontario’s Occupational Health and Safety Act (OHSA), often called the "green book," sets the rules for workplace safety. Federally regulated workplaces follow the Canada Labour Code, Part II. In addition to OHS laws, all regions in Canada also have workers' compensation legislation, which helps injured workers. Some provinces, like British Columbia, combine OHS and workers’ compensation management, while others, like Ontario, separate these responsibilities between different agencies. The OHSA focuses on preventing workplace injuries, while the Workplace Safety and Insurance Act (WSIA) supports injured workers and families of those who die on the job. Workers are protected by law and have access to a no-fault compensation system if hurt at work. However, this wasn’t always the case. In the early 19th century, workers had little protection and could only sue their employer if injured or if a family member died. Many of these lawsuits failed due to legal deficiencies, despite being seemingly just. The common law system, which is adversarial, often failed workers by focusing more on legal arguments than on ensuring fairness. These shortcomings led to the development of modern OHS legislation, aimed at protecting workers more effectively. While we've made progress, there's still much work to do to eliminate workplace fatalities and serious injuries in Canada. Historical OHS Cases This section reviews past court cases, some from as far back as the 19th century, to show how workers often struggled to win legal cases against their employers. In many instances, even when employers’ negligence seemed clear, they managed to use common law defenses to avoid responsibility. Today, thanks to modern OHS and workers' compensation laws, many of these defenses are no longer available, and workers don't have to rely on lawsuits for compensation. These cases influenced the creation of legislation and legal changes that now protect workers in Canada. Some of the cases are from a different time and may be difficult to read, but it’s important to understand the main issues, the court's decisions, and the legal principles that emerged. Priestly v. Fowler In this case, Mr. Priestley, a butcher, suffered a thigh fracture after being thrown from his employer’s overloaded and poorly maintained carriage. Despite the obvious negligence, the court did not hold the employer responsible. The reasoning was that allowing this claim could open the “floodgates,” making employers accountable for all workplace accidents. Nicholas Farwell v. The Boston and Worcester Rail Road In this American case, a worker was injured due to the actions of a fellow worker. The court ruled that the employer was not liable, as both workers were considered "fellow servants." Under the “fellow-servant” rule, employers were not held responsible for injuries caused by the negligence of one worker toward another. These cases highlight how difficult it was for workers to win compensation before the development of OHS and workers' compensation laws. Modern Common Law Actions In this section, we explore modern cases that show how little has changed in court attitudes toward workers suing their employers for workplace injuries. While workers’ compensation laws have made significant strides in supporting injured workers, common law has remained largely unchanged in its approach to such cases. DeLeavey v. Brinkman In this case, the court’s ruling followed the same pattern as older cases. Although the employer had modified equipment that contributed to the worker’s injury, the court placed more weight on the fact that the worker had been warned about the risks. The employer’s modification of the equipment was not seen as a significant factor, and the worker’s claim was unsuccessful. R v. John Albert Marshall Here, despite the worker's lack of training and experience, the court held that the worker should have known the dangers of using a chainsaw. The court’s reasoning appeared to balance the negligence of both the worker and the employer, even though the employer, as the “master,” should bear greater responsibility for workplace safety. This reasoning raises questions about fairness and the master-servant relationship, where employers are expected to prioritize their workers’ safety. These cases illustrate the limitations of common law in providing justice for injured workers, emphasizing the importance of modern OHS and workers' compensation legislation. Historical Common Law Defences In the 19th century, injured workers had only one legal option: suing their employers for damages. Despite obvious negligence in many cases, courts were hesitant to hold employers responsible, often citing "public policy" reasons, such as avoiding a flood of litigation that might harm the economy. Along with these concerns, common law provided employers with several powerful defences that made it even harder for workers to win their cases. Below are some of the key defences used at the time. 1. Volenti Non Fit Injuria ("To One Who Consents, No Harm is Done") This defence argued that workers voluntarily accepted the risks associated with their tasks. Employers would claim that: The worker was aware of the risks. The worker voluntarily took on the task. The worker accepted the danger willingly. Today, this defence is rarely successful because workplace safety is strictly regulated, and employers are responsible for ensuring a safe working environment. 2. Doctrine of Common Employment ("Fellow Servant Rule") Under this doctrine, employers were not liable if a worker was injured due to the negligence of a coworker. This rule contradicted modern principles like vicarious liability (where employers are responsible for their workers' actions). Today, this defence is obsolete as the courts recognize that employers should be responsible for injuries that occur during the course of work. 3. Contributory Negligence This defence shifted part of the blame to the injured worker. If the worker contributed to their injury, such as by using equipment incorrectly, the court would reduce the employer’s liability. While contributory negligence was a common defence in the past, modern OHS laws place full responsibility for worker safety on the employer. 4. Violation of Employer's Rule Employers would argue that workers were injured because they violated workplace safety rules, making the workers responsible for their own injuries. This argument was often successful in the past, but under today’s "no-fault" workers' compensation system, employers cannot use this defence as easily. 5. Violation of Statutory Law Employers would also claim that workers were injured because they violated legal regulations, which made their claims invalid. The idea was that a worker could not seek compensation if they were engaged in illegal activity at the time of their injury. Today, this defence is rarely successful under the workers' compensation system. These defences made it difficult for workers to seek justice in the 19th century, underscoring the importance of modern OHS and workers’ compensation laws that prioritize worker safety over outdated legal principles. Non-Legal Difficulties Faced by Injured Workers Who Sued Their Employers Beyond the legal defences that employers used, injured workers in the 19th century faced numerous non-legal challenges that made it difficult for them to pursue legal action. Below are some of the main obstacles: 1. The Worker’s Burden of Proof Workers had the responsibility of proving their case, including that the employer's negligence caused the injury. This was difficult since employers controlled the workplace and the evidence needed to prove negligence, such as faulty equipment or unsafe conditions, was often inaccessible to workers. Proving "causation" was a significant challenge without modern investigative tools. 2. Lack of Protection Against Dismissal There were no laws protecting workers from being fired or punished for suing their employers. Fear of losing their jobs, which were scarce and critical for providing for their families, often deterred workers from seeking justice. Winning a lawsuit but returning to the same workplace or facing a bad reputation made the idea of suing even more daunting. 3. Refusal of Fellow Workers to Testify Fellow workers were often unwilling to testify against their employer, fearing they could also face retaliation or be labeled as "troublemakers." The workplace solidarity we see today was less common back then, and workers who did support an injured colleague usually had to do so secretly, limiting their effectiveness as witnesses in open court. 4. Unaffordable Litigation Costs The cost of litigation was a major barrier for workers. Most injured workers were not wealthy and could not afford the high costs associated with bringing a lawsuit against their employer. This financial burden kept many workers from even attempting to sue. 5. Lengthy Court Proceedings Even if a worker could afford to sue, the legal process was slow and could take years. During this time, the worker would likely be out of work and struggling to support their family. The uncertainty and delay of legal proceedings made suing an impractical option for many injured workers, who might instead choose to endure their injury and keep their job. These non-legal barriers contributed significantly to the challenges faced by workers in seeking justice before the introduction of workers' compensation and occupational health and safety legislation. Common Law Duties Owed by Employers to Workers The tort of negligence is often the basis for an injured worker's legal action against an employer. To win a negligence case, the worker must prove three key elements: that the employer owed a duty of care, that this duty was breached, and that the breach caused the injury in question. The following are common law duties employers owe to their workers: 1. Duty to Hire Competent Coworkers Employers are responsible for hiring competent managers, supervisors, and coworkers to prevent workplace accidents. If an employer knowingly allows an incompetent or unsafe worker to continue working, they may be held liable for any harm caused, as shown in past cases where dangerous pranks or unsafe behavior led to injuries. 2. Duty to Provide a Safe Workplace Employers must ensure the physical conditions of the workplace are safe, which includes controlling hazards like chemicals and biological risks. This duty also extends to providing a clean, well-maintained environment that complies with occupational health and safety (OHS) regulations. 3. Duty to Provide Safe Tools and Equipment Employers are obligated to provide safe tools and equipment for workers to use. This includes ensuring proper maintenance and safe storage of equipment. If faulty tools cause an injury, the employer may be held liable. 4. Duty to Provide a Safe System of Work A safe system of work refers to the overall procedures, processes, rules, and training related to work management. Employers must ensure that these systems are effective and designed to protect workers. When multiple factors lead to an accident, it is often due to a failure in the system of work, making the employer responsible for ensuring the system works smoothly and reduces risk. These duties, established in English common law, remain relevant today and are enforced through both legal precedents and OHS regulations. History and Principles of Workers’ Compensation Laws Canada's workers' compensation system, which ensures financial support and medical care for workers injured on the job, began with the 1914 Ontario Workers' Compensation Act. This model spread to other provinces and territories, ensuring compensation without requiring injured workers to sue their employers. Key milestones include the Ontario legislation of 1914, followed by Nova Scotia (1915), British Columbia (1916), and others. Today, all Canadian jurisdictions have workers' compensation systems based on foundational principles established by the Meredith Royal Commission. The Meredith Royal Commission In 1910, Justice William Meredith was tasked with reviewing global compensation systems to develop a fair compensation law for Ontario. Drawing heavily from the German model of collective liability and compulsory insurance, Meredith's 1913 report recommended key principles that shaped modern workers' compensation laws in Canada. The Meredith Principles Five major principles emerged from the Meredith Report: 1. No-Fault Compensation Workers are compensated for injuries regardless of fault. In exchange for the right to sue employers, workers receive guaranteed compensation through a "no-fault" system. This eliminates common law defences like contributory negligence and volenti non fit injuria, ensuring that even if workers were partly responsible for their injuries, they are still compensated. 2. Collective Liability Employers contribute to a pooled fund, managed by the workers' compensation board, from which injured workers are compensated. This system protects workers even if their employer goes bankrupt. Employers in high-risk industries or with higher injury rates may pay higher premiums, incentivizing safety measures. 3. Security of Payment Compensation funds are secure, ensuring that workers will always have access to benefits and payments in case of injury. The establishment of a fund guarantees long-term financial stability for injured workers. 4. Independent Board The compensation board operates independently of the government and other political influences. It is responsible for adjudicating claims and managing the compensation system. Its decisions can only be appealed to a specialized tribunal, ensuring impartiality and finality in decision-making. 5. Exclusive Jurisdiction The workers’ compensation board has exclusive authority over workers' compensation claims. Employers and workers cannot interfere with the board's decisions, and appeals are handled by the Workplace Safety and Insurance Appeals Tribunal (WSIAT), which is separate from the board and serves as the final level of appeal. The Meredith principles laid the foundation for a fair, efficient, and comprehensive system of workers' compensation in Canada. By adopting a no-fault, collective liability system, workers' compensation ensures that workers injured on the job are financially supported without resorting to litigation, while also providing employers with a predictable and sustainable system of premiums. How Workers’ Compensation Legislation Modifies the Common Law Workers' Compensation legislation, particularly the Workplace Safety and Insurance Act (WSIA), significantly alters the common law landscape concerning employer liability and the defenses available in negligence claims. This section discusses key provisions of the WSIA that provide a more protective framework for workers while limiting employers' defenses in negligence claims. Key Provisions of the WSIA 1. Employer's Liability (Section 114) ○ Circumstances for Action: Under the WSIA, a worker can bring an action against their employer for injuries resulting from: Defects in the workplace or related equipment. Direct negligence by the employer. Negligence of a co-worker acting within the scope of employment. ○ Action by the Estate: If a worker dies due to such an injury, their estate or a designated beneficiary can file a claim for damages. 2. Liability of Owners and Contractors (Section 115) ○ Workers can also pursue damages against parties other than their direct employer, including contractors and subcontractors, under similar circumstances as mentioned above. ○ However, a worker cannot recover damages from both the employer and the contractor for the same injury, thereby preventing double recovery. 3. Voluntary Assumption of Risk (Section 116) ○ This section fundamentally changes how "voluntary assumption of risk" is assessed. Workers cannot be deemed to have voluntarily assumed the risk of injury simply because they were aware of existing defects or negligence. ○ Furthermore, workers are not held liable for injuries resulting from the negligence of their fellow workers, which was a common defense in traditional negligence cases. 4. Contributory Negligence (Section 116) ○ The WSIA stipulates that a worker's contributory negligence does not bar recovery for damages. This means that even if a worker is found to be partly responsible for their injury, they can still claim damages. ○ However, the extent of the worker's negligence will be considered when determining the amount of damages awarded. 5. Insurance Proceeds (Section 117) ○ Employers’ liability insurance is explicitly recognized as being for the benefit of the injured worker, ensuring that insurance payouts contribute directly to compensating workers for their injuries. ○ The WSIA prohibits insurers from paying the employer until the worker's claim has been satisfied, protecting the worker's right to compensation. The WSIA represents a significant shift from common law principles that often placed the burden of proof and liability on injured workers. By modifying key aspects of employer liability and defenses available in negligence cases, the WSIA promotes a more equitable system for injured workers, ensuring they receive timely compensation without the burden of proving fault or facing traditional defenses that might otherwise undermine their claims. This legislative framework fosters a safer work environment while balancing the interests of employers and employees in the context of workplace injuries. Environmental Causes of Action Understanding environmental causes of action is crucial for Occupational Health and Safety (OHS) professionals as they often overlap with environmental management and compliance. The following outlines key environmental causes of action that OHS professionals should be familiar with. 1. Strict Liability (The Rule in Rylands v. Fletcher) Strict liability refers to legal responsibility for damages or injury without the necessity of proving fault, intent, or negligence. This principle is encapsulated in the landmark case Rylands v. Fletcher (1868), which established that: Key Points of Strict Liability: 1. The defendant brings something onto their land likely to cause harm if it escapes. 2. The thing escapes from the land. 3. The use of the land is considered "non-natural." 4. The escape causes foreseeable harm. In Rylands v. Fletcher, water from a reservoir built by a mill owner flooded a neighboring coal mine due to defects in abandoned shafts. The court ruled that the mill owner was strictly liable for the damage caused by the escape of water, regardless of intent. Defenses to Strict Liability: ○ Consent: The plaintiff may have agreed to the risk. ○ Act of God: Natural events that could not have been foreseen. ○ Unforeseeable Act of a Stranger: Actions by third parties that lead to the escape. ○ Statutory Authority: Activities authorized by law. 2. Trespass Trespass is defined as the unlawful entry onto another’s property without permission, and it can occur without causing damage. Key points include: Key Point: The mere act of trespassing is sufficient for liability. Examples of Trespass: Entering someone else's land or dumping waste without permission. Trespass can lead to civil action for damages, as it constitutes an infringement on property rights. 3. Nuisance Nuisance involves an unreasonable interference with the use and enjoyment of land. It can arise from various activities, including pollution and noise. Types of Nuisance: ○ Private Nuisance: Protects landowners from disturbances that interfere with their enjoyment of their property. ○ Public Nuisance: Involves interference with public rights or the general public's enjoyment of common resources. Individual claims can be brought if a person suffers special harm compared to the general public. ○ Criminal Nuisance: Defined under the Criminal Code of Canada, it includes actions that endanger public safety or health. Defenses Against Nuisance Actions: ○ Prescription: Continuous activity for over 20 years may establish a right. ○ Consent: The injured party may have consented to the activity. ○ Act of a Third Party: Intervening acts that contribute to the nuisance. ○ Act of God: Unforeseeable natural events causing interference. ○ Statutory Authority: Compliance with legal requirements. 4. Negligence Negligence occurs when a party fails to exercise reasonable care, resulting in foreseeable harm to another. Environmental negligence can arise from actions that lead to pollution or other harmful consequences. Key Elements of Negligence: ○ Duty of care owed by the defendant to the plaintiff. ○ Breach of that duty. ○ Causation linking the breach to the harm suffered. ○ Actual damages incurred. Conclusion OHS professionals must navigate these environmental causes of action effectively, as they intersect with workplace safety and compliance responsibilities. Understanding the principles of strict liability, trespass, nuisance, and negligence will empower professionals to advise employers on minimizing legal risks and ensuring a safe, compliant work environment. Module 4: Introduction: This section gives a brief overview of the history and evolution of workers' compensation laws in Ontario, Canada. It explains that before modern compensation laws, injured workers had a tough time getting financial help. The Meredith Royal Commission (1910-1913) was set up to fix this problem. The commission reviewed how other countries handled workers’ compensation and recommended a system where workers would receive compensation for injuries but couldn't sue their employers for negligence. This recommendation led to the Workmen’s Compensation Act in 1915, which is now called the Workplace Safety and Insurance Act (WSIA). The WSIA, passed in 1997, expanded its focus beyond just compensating injured workers to also include preventing workplace injuries and ensuring overall safety. Ontario’s law became the model for other provinces, and workers in federally regulated workplaces follow the laws of the province they work in. This section also emphasizes that the laws change frequently, and the best way to stay updated is to check the latest version on the Government of Ontario’s e-Laws website Key Terms: Accident: This refers to events causing injury, including deliberate harmful acts (but not by the worker), random events caused by physical factors, or injuries that happen while working. Accommodation: Changes made to a job or workplace, like reducing hours or providing assistive tools, so that a worker can keep working despite physical limitations, in line with human rights laws. Earnings: Any money a worker is paid, but it doesn’t include benefits like healthcare contributions. Essential duties: The core tasks that are necessary to complete the job's main purpose or deliver the product/service. Impairment: Any physical or mental damage resulting from an injury, including things like disfigurement or loss of function. Learner: Someone who is training or working temporarily in a risky job without being fully employed or in an apprenticeship. Spouse: Either someone you're legally married to or a partner you're living with for at least a year, have a child with, or have a cohabitation agreement. Suitable work: Work that a worker can safely do after an injury, matches their abilities, and, ideally, provides the same income as before the injury. Survivor: A spouse, child, or dependent family member of a worker who has passed away. Introduction to the WSIA Act The Workplace Safety and Insurance Act (WSIA) is a detailed and long-standing law, over 100 years old, that has been updated multiple times. It’s divided into different sections: Part I: Interpretation (defining terms and concepts) Part II: Repealed in 2011 (this part was removed) Part III: Insurance Plan Part IV: Health Care Part V: Return to Work Part VI: Insured Payments (compensation for workers) Part VII: Employer Obligations Part VIII: Insurance Fund (managing funds for the insurance system) Part IX: Transitional Rules (rules for moving between old and new systems) Part X: Uninsured Employment (jobs not covered by the Act) Part XI: Decisions and Appeals (how decisions are made and appealed) Part XII: Enforcement (ensuring the rules are followed) Part XIII: Administration (management of the Act) The purpose of the Act is mainly to promote health and safety in the workplace. Providing compensation and benefits for injured workers is also a key goal but is now listed further down in subsection 4. Subsections 2 and 3 focus on helping workers return to work and re- enter the job market. The Act starts by defining important terms used throughout the legislation. These terms might seem familiar in everyday language but have specific legal meanings in the WSIA. It’s important to understand these definitions to correctly apply the law, especially since the same word might have different meanings in other laws. For example, the word “worker” means different things in the WSIA and the Occupational Health and Safety Act (OHSA). The definitions in section 1 of the Act apply to the whole WSIA and don't need to be explained again each time they're mentioned. You should pay close attention to terms like: accident Board (likely referring to the Workplace Safety and Insurance Board) dependents employer impairment industry occupational disease spouse worker Lastly, there’s a conflict between the WSIA and the Human Rights Code (HRC) regarding age. The HRC prohibits age discrimination, but the WSIA has some age-based rules. If these two laws clash, the WSIA takes priority. Injury and Disease Prevention Part II of the Workplace Safety and Insurance Act (WSIA), which was introduced in 1997, gave the Workplace Safety and Insurance Board (WSIB) authority over workplace safety in Ontario. However, in 2011, this part was removed after changes were made based on a review of Ontario’s prevention system. An expert panel led by Tony Dean reviewed the system in 2010 and suggested several improvements. Key recommendations included creating a chief prevention officer and moving control of the safe workplace associations to this new officer. In 2011, the WSIA was updated to reflect these changes, and Part II was repealed. Introduction to the Schedules The Workmen’s Compensation Act of 1914 aimed to protect workers, especially in dangerous industries like mining, forestry, and construction, which were automatically included in the compensation system. Safer industries, like banking and teaching, were not included. Over time, new risks, such as repetitive strain injuries and occupational diseases, were recognized, leading to broader coverage. The system is based on the principle that high-risk industries pay higher premiums, with companies contributing to a collective liability pool. This ensures that even if one company goes bankrupt, others in the same industry group cover the costs of approved injury claims. Some organizations, like government agencies, don’t participate in this system since they can’t go bankrupt and don’t need insurance. This structure resulted in two main categories: Schedule 1: High-risk industries contributing to the collective fund. Schedule 2: Organizations, like government entities, that don’t need insurance. Most companies fall under Schedule 1, and there are also Schedules 3 and 4, explained in Ontario Regulation 175/98. Schedule 1 When the Workmen’s Compensation Act was first introduced, certain high-risk industries like demolition, construction, mining, and pulp mills were required to join the compensation system under Schedule 1. These industries pay premiums into a collective insurance fund, with rates based on both the industry's injury history and the company's payroll size. Dangerous industries pay higher premiums than safer ones, and the premiums are based on the company’s assessable payroll, which is multiplied by a rate specific to their industry. This system, still in use today, ensures that all Schedule 1 companies share the risks and costs through collective liability. This means that funds are pooled, protecting companies from financial ruin after major accidents, much like any other insurance system. Currently, Schedule 1 is divided into sixteen industry classes as outlined in Regulation 175/98. All participating companies benefit from the shared resources of the fund, helping them manage both good and bad years financially. Schedule 2 Schedule 2 employers in Ontario, unlike those in Schedule 1, do not participate in the collective insurance pool. Instead, they directly pay for all costs related to workplace injuries and diseases. These firms are usually large, funded by tax dollars, and often considered less risky, such as railways, provincial governments, municipalities, school boards, and airlines. The WSIB manages their claims and charges them directly for any costs, along with administration fees for handling the claims. These companies benefit from the WSIB's expertise in claims management, even though they aren’t required to join the insurance scheme. Federal government employees in Ontario are treated as if the federal government were a Schedule 2 employer. Firms that operate under both schedules are classified entirely under Schedule 1, though Schedule 2 employers can choose to transfer to Schedule 1 to enjoy collective liability protection. Some industries, like banks, aren’t covered under the compensation scheme because they were considered low-risk when the law was first enacted. Newer industries, such as aerospace and computing, can either find private insurance or request WSIB coverage. The WSIB can also add new industries to Schedule 1 if needed by amending regulations. Schedule 3 Schedule 3 outlines the list of occupational diseases covered by workplace compensation. Originally, the law included six diseases, but now there are thirty recognized diseases under Ontario Regulation 175/98. For a worker to receive compensation, they must demonstrate they have one of these diseases and that their job involved exposure to it. If an employer can show that the disease was not caused by work or that the exposure time was too short, the claim may be denied. These diseases are considered “rebuttable,” meaning the employer can challenge the claim. Schedule 4 Schedule 4 includes a list of only four diseases covered by workplace compensation, as specified in Ontario Regulation 175/98. For a claim to be accepted, a worker must prove they have one of these diseases and that they were employed in a listed work process. Unlike other schedules, these diseases are considered “irrebuttable,” meaning it's assumed they were caused by the workplace without needing further proof. The term “presumption” is important here; it indicates that the Board will automatically assume the disease is work-related if the worker was in a listed job. No additional tests or measurements of exposure are required. Collective Liability and Prevention From 1997 to 2012, the WSIB managed injury prevention. One way it motivated Schedule 1 employers to improve safety was by raising premiums for companies with poor performance. Since insurance is mandatory, higher costs for poorly performing companies encouraged them to focus on reducing workplace injuries. In Schedule 1, better performance leads to lower rates and premiums, but Schedule 2 companies don’t have similar financial incentives to enhance health and safety practices. Now, while the Chief Prevention Officer oversees injury prevention, the WSIB can still increase premium rates for companies or industries with rising accident rates. This helps ensure there is enough funding in the insurance pools to cover costs. Sections 11 to 31 of the WSIA cover various topics related to the insurance plan, including: Sections 11-20: Insured Employment and Injuries Sections 21-23: Notice of Accident and Claims for Benefits Sections 24-25: Wages and Employment Benefits Sections 26-31: Rights of Action Sections 11–20: Insured Employment and Injuries Sections 11 and 12 These sections outline who is covered by workers' compensation insurance. Generally, all employees of Schedule 1 and Schedule 2 employers are included, with exceptions like casual workers (e.g., someone hired for a day to shovel snow) and executive officers. Employees who work outside Ontario are typically excluded unless certain conditions are met. Claims for mental stress are also limited; benefits are not available for stress caused by employer decisions. Section 13 This section covers the types of injuries included in the insurance plan. To qualify for compensation, a worker must prove that their injury arose out of and occurred during their employment. There are specific exclusions for injuries happening outside Ontario and for mental stress not related to work conditions. Section 14 Focused on post-traumatic stress disorder (PTSD), this section allows first responders to claim benefits if diagnosed with PTSD. Workers listed in this section are presumed to have incurred the disorder from their job unless proven otherwise. Application for Coverage Independent operators, sole proprietors, and partners in businesses can apply for WSIB coverage. This includes executive officers, subject to premium payments. Section 12 requires them to register with the Board within ten days of becoming independent or a partner. Section 15 This section addresses occupational diseases. Workers must suffer from and be impaired by these diseases to qualify for benefits, which are treated like injuries. Occupational diseases are listed in Schedule 3, with a presumption of workplace causation unless disproven. Unlike injuries, occupational diseases can be complex to diagnose and often develop over time. Amendments for Firefighters Section 15.1, added in 2007, establishes presumptions for injuries specific to firefighters, reflecting their unique health risks. Sections 21–23: Notices of Accidents and Claims for Benefits Notification Requirements Employers must report any worker accidents to the WSIB within three days if healthcare is needed or if the worker can't earn full wages. The report uses "Form 7." Failing to notify can result in fines. Worker Claims Workers can file claims within six months of an accident or learning of an occupational disease. Claims from survivors after a worker's death also must be filed within six months. Workers must agree to share medical information and notify the Board of any significant changes in their situation within ten days. Sections 24–25: Wages and Employment Benefits Employer Responsibility Employers must pay workers for the entire day of an injury, regardless of when it occurred. If the worker is off work, the employer covers employment benefits for the first year, provided the employer was paying those benefits before the injury. Sections 26–31: Rights of Action Restrictions on Lawsuits Workers cannot sue for benefits from workplace injuries. The WSIB decides who gets benefits, and this decision is final. This restriction extends to the survivors of deceased workers. Legal Actions and Third Parties If a worker is injured but can also sue another party (e.g., for defective equipment), they must notify the WSIB within three months of the accident. If the third party isn't covered by WSIA, the worker can choose between accepting WSIB benefits or pursuing the lawsuit. Subrogation If a worker accepts WSIB benefits, the Board can pursue the third party for costs. For Schedule 1 employers, the Board acts as the insurer, while for Schedule 2 employers, the employer is the insurer and can decide whether to pursue the third party. If a third party pays more than the costs incurred by the Board or employer, the surplus must be returned to the worker or their survivors. If the worker chooses to pursue their own action and wins, they lose WSIB coverage, but if they lose or receive less than what the Board would pay, they can return to the Board for compensation. Health Care Overview Definition of Health Care Section 32 defines health care broadly, including: Services from health care professionals Hospital and health facility services Medications Attendant services Home and vehicle modifications for independent living Assistive devices and prosthetics Transportation costs for healthcare access Other measures to improve the quality of life for severely impaired workers Worker Rights and Responsibilities Injured workers have the right to choose their health care provider. The Board will pay for the care, and workers cannot be charged directly. The Board also sets the payment rates and decides on the necessity of treatments. Workers must cooperate with the Board's health care requirements; otherwise, their benefits might be reduced or suspended. The Board can request that workers be examined by their selected health professionals. Employers can also ask for their own examinations, but workers can object, although the Board's decision is final and not appealable. Confidentiality and Information Sharing The Board can collect information from health care providers about the worker’s treatment and abilities, keeping this information confidential except for those helping the worker return to work. Employer Responsibilities After an injury, employers must provide transportation for injured workers to medical facilities, and the cost is covered by the employer. The Board also covers damage to assistive devices or prosthetics due to the workplace accident, including prescription glasses. Introduction to Return to Work Employer Responsibilities Employers must help workers return to work safely and quickly after an injury. This includes: Contacting the injured worker promptly and keeping communication open. Providing suitable employment that matches the worker's abilities. Striving to restore the worker's pre-injury earnings. Informing the Board about the worker’s return-to-work progress. Worker Responsibilities Workers must also participate actively in their return to work by: Contacting their employer as soon as possible after the injury. Helping identify suitable job opportunities that fit their abilities and restore their previous earnings. Reporting their return-to-work information to the Board. Construction Industry Considerations In construction, workers may face less stable employment due to project cycles. If injured for an extended period, they may find their job has ended when they recover. Both employers and workers must cooperate to support the worker's return. Volunteer Workers For volunteers in emergency services, there is a distinction between the "deemed" employer (the emergency service) and the "actual" employer (the regular employer). The actual employer is responsible for re-employment, while the deemed employer covers associated costs. Monitoring and Dispute Resolution The Board may check in with both the employer and the worker to ensure they are meeting their obligations. If there are disputes, either party can notify the Board, which will resolve the issue through mediation or a decision within 60 days, though this period can be extended if needed. Re-employment Obligations According to Section 41, employers must re-employ workers who have been injured and were continuously employed for at least one year. This obligation does not apply to employers with fewer than 20 employees. If a worker hasn't returned to work, the Board can assess whether the worker can perform their original job or suitable alternative work. This assessment can happen on the Board's initiative or due to a dispute. Practices of Return to Work Re-employment Responsibilities When a worker is capable of performing the essential duties of their pre-injury job, the employer must: Offer to re-employ the worker in their original job. Provide alternate employment with comparable earnings if the original job isn’t feasible. If the worker can do suitable work but not the exact pre-injury tasks, the employer must give them the first chance to take any suitable jobs that open up. Workplace Accommodation Employers are required to make reasonable accommodations for the worker’s return, as long as it doesn’t cause undue hardship. This can include: Adjusting work hours. Lowering productivity expectations. Providing assistive devices. As the worker’s abilities improve, the need for accommodations may decrease, making the job more like the one they had before the injury. However, in some cases, permanent accommodations might be necessary if the worker’s abilities are limited. If the employer can provide these accommodations without undue hardship, they must do so to help the worker perform essential tasks. Timeframe for Obligations Employers must meet these re-employment obligations until the earliest of: Two years after the injury. One year after the worker is deemed fit to do their pre-injury job. The worker reaches 65 years of age. In the construction industry, these obligations differ slightly, focusing less on the length of employment. Termination After Re-employment If an employer re-employs a worker under section 41 and then terminates them within six months, it’s assumed that the employer didn’t meet their re-employment obligation. However, the employer can prove that the termination was unrelated to the injury. The Board can investigate re-employment fulfillment, usually prompted by the worker within three months of termination. If the Board finds the employer failed to re-employ the worker, it can impose a fine and provide payments to the worker for up to a year. This section takes precedence over collective agreements but does not override seniority provisions. Labour Market Re-Entry In some cases, a worker may not return to their previous job due to: The nature of their injury. The employer's inability to provide suitable work. Lack of cooperation from the employer. Labour Market Re-Entry Plans When a worker cannot regain the ability to perform their prior job, a Labour Market Re-Entry Plan may be necessary. This plan often includes training or education tailored to the worker’s situation. The Board can initiate a labour market re-entry plan (section 42) based on their assessment of suitable job opportunities. The plan is developed in consultation with: The worker. Their employer (if appropriate). Health care practitioners, if needed. This individualized plan will outline the necessary steps for the worker to re-enter the job market in suitable employment. The Board covers all costs associated with the plan. Module 5: Workers' Compensation: Part 2 introduces the continuation of the Workplace Safety and Insurance Act (WSIA), focusing on Parts VI through XIII. In the previous module (Module 4), key concepts such as who is covered, prevention, insurance, claims, benefits, rights of action, and return-to-work plans were discussed. Now, in this module, the coverage expands to: Part VI – Insured Payments Part VII – Employers and Their Obligations Part VIII – Insurance Fund Part IX – Transitional Rules Part X – Uninsured Employment Part XI – Decisions and Appeals Part XII – Enforcement Part XIII – Administration of the Act The module focuses on various benefits (disability compensation, death benefits, pensions), and administrative details. Students are encouraged to use the WSIA from the e-Laws website as a reference for these sections. Many of the theoretical concepts from earlier modules will now be applied practically. Insured Payments Workers who experience a loss of earnings due to a workplace injury covered by insurance are entitled to several types of payments under the WSIA. These include: Wage replacement (total or supplemental) Non-economic loss (NEL) Health care Return-to-work and/or Labour Market Re-entry Plan (LMRP) If a worker dies on the job, survivors receive wage replacement, a lump-sum death benefit, and funeral expenses (WSIA sections 43-48). Payment Details: Payments start when the loss of earnings begins and continue until the earliest of: ○ The return to pre-injury work ○ Age 65 (if under 63 at the time of injury) or two years after the injury (if over 63) ○ The worker is no longer impaired Wage replacement is 85% of the difference between pre-injury and post-injury net earnings. Minimum payment for full loss of earnings is capped at the lesser of $22,904.44 or the worker’s pre-injury earnings. Payments depend on worker cooperation with health care, safe return to work, and LMRP. WSIB payments are not taxable. Points of Clarifications: Net Average Earnings (NAE): The average weekly salary is calculated based on variable earnings over a year for workers in fluctuating jobs (e.g., seasonal, commission-based). Annual Adjustments: Payments are adjusted annually (January 1) based on the consumer price index. These adjustments consider any Canada Pension Plan or Quebec Pension Plan disability payments. Change-over Benefits: Benefits changed in 2018, and section 43 explains how the Board calculates payments for claims crossing the transition date. Review of Payments: Payments may be reviewed annually or when circumstances change, but generally not more than 72 months after the injury unless exceptions like fraud or misrepresentation arise (section 44). Examples: A worker recovering at home with no post-injury income will receive 85% of their pre- injury earnings. For a worker earning less due to reduced hours, wage replacement is 85% of the difference between pre- and post-injury earnings. Loss of Retirement Income (WSIA Section 45) When workers are injured and receive loss of earnings payments for over 12 consecutive months, the WSIB sets aside 5% of each payment for retirement. Workers under 64 can also choose to contribute an additional 5%, but this decision is final and must be made in writing. The contribution is deducted from their payments. At age 65, workers receive a pension based on the total amount set aside, plus interest. If the total is over $3,000, they can convert it to an annuity or other payment form; smaller amounts are paid as a lump sum. Survivors may receive benefits, but typically not from both section 45 (retirement income) and section 48 (death benefits). The WSIB provides annual statements showing contributions, investment income, and other relevant details. Non-Economic Loss (NEL) When a worker suffers a permanent impairment, they are entitled to compensation for the loss of enjoyment of life, unrelated to income. This compensation is determined through a two-step process: 1. Determining Impairment (Section 47): The WSIB calculates the worker’s degree of permanent impairment as a percentage, using medical assessments and rating schedules. If the impairment is 0%, no compensation is awarded. Reassessments may be required after maximum medical recovery. 2. Calculating Compensation (Section 46): ○ The compensation is based on the worker’s age at the time of injury and the percentage of impairment. For 100% impairment, the base amount is $59,095.26, adjusted by $1,313.71 for every year the worker is younger or older than 45. ○ The compensation ranges between a maximum of $85,359.27 and a minimum of $32,831.21. ○ If the total exceeds $13,132.01, it’s paid as a monthly amount for life; otherwise, it’s paid as a lump sum. Workers can choose a lump sum payment, but the decision is final. Examples Let us calculate the non-economic loss (NEL) entitlement of a 55-year-old worker who is 15% impaired. 55 - 45 = 10 years greater than 45 $1,313.71 x 10 = $13,137.10 $59,095.26 - $13,137.10 = $45,958.16 (for 100% impaired) Since the worker is 15% impaired, $45,958.16 x 0.15 = $6,893.72 Let us calculate the NEL for a worker who is 30 years of age, and who is 80% impaired. 45 - 30 = 15 years less than 45 $1,313.71 x 15 = $19,705.65 $59,095.26 + $19,705.65 = $78,800.91 (for 100% impaired) Since the worker is 80% impaired, $78,800.91 x 0.80 = $63,040.73 Survivor Benefits (WSIA) Survivor benefits, referred to as "death benefits" under the Workplace Safety and Insurance Act (WSIA), are paid to the survivors of a worker who dies due to a work-related injury. Surviving Spouse Lump Sum: The surviving spouse receives a lump-sum payment of $80,673.30. This amount is adjusted: ○ Add $2,016.83 for each year the spouse is younger than 40. ○ Subtract $2,016.83 for each year the spouse is older than 40. ○ Maximum: $121,009.87. Minimum: $40,336.60. Periodic Payments: ○ If there are no children, the spouse receives 40% of the worker's net average earnings (NAE), adjusted by 1% for each year over or under 40. ○ Maximum: 60%, Minimum: 20% (no less than $22,904.44). Spouse with Children If there are children, the spouse receives 85% of the worker’s NAE until the youngest child reaches 19. Afterward, the amount drops to 40% of NAE. Payments continue until the spouse turns 65. The minimum amount is $22,904.44. No Surviving Spouse If there is no spouse, the children receive a lump-sum of $80,673.30. One child gets 30% of NAE, with a minimum of $22,904.44. For multiple children, the amount increases by 10% per child, up to a maximum of 85% of NAE. Additional Provisions Cremation/Burial Costs: At least $3,025.25 is paid for burial or cremation expenses. Other Dependents: Payments may be made to other dependents if there is no spouse or children. Lump-Sum Payment for Surviving Spouse: 1. Base Amount: $80,673.30. 2. Adjustments: ○ Younger than 40: Add $2,016.83 for each year below 40. ○ Older than 40: Subtract $2,016.83 for each year above 40. 3. Limits: Max of $121,009.87, min of $40,336.60. Periodic Payments: 1. Without Children: ○ Base Percentage: 40% of the worker's net average earnings (NAE). ○ Adjustments: +1% for each year over 40. -1% for each year under 40. ○ Limits: Max of 60%, min of $22,904.44. 2. With Children: ○ 85% of the worker’s NAE until the youngest child turns 19, then it drops to 40%. Example Calculations: Lump-Sum for a 55-Year-Old: ○ Calculation: 55 - 40 = 15; 80,673.30−(2,016.83×15)=50,420.85 Lump-Sum for a 38-Year-Old: ○ Calculation: 80,673.30+(2,016.83×2)=84,706.96 Periodic Payment for a 42-Year-Old with No Children: ○ Calculation: 30,000×0.4(40%)+(30,000×0.01×2)=12,600 Periodic Payment for a 25-Year-Old with No Children: ○ Calculation: 30,000×0.4(40%)−(30,000×0.01×15)=7,500 Administration Summary (Sections 49–66) The WSIA addresses various administrative issues from sections 49 to 66. Here's a simplified overview: Benefit Indexing (Section 49): Benefits are adjusted based on the consumer price index. While benefits can increase, they cannot decrease. Earnings Cap (Section 54): If a worker's average earnings exceed 175% of Ontario’s average industrial wage, their earnings for WSIA calculations will be capped at this amount. Payments for Incapable Persons (Section 60): Payments for individuals unable to manage their affairs are directed to their guardian or attorney. Agreements (Section 63): Agreements between employers and workers regarding payments must be approved by the Board to be binding. Benefits Assignment (Section 64): Benefits cannot be assigned, garnished, or attached without Board permission, except for support payments under the Family Law Act. Employer Obligations Summary Sections 67 to 87 of the WSIA outline the obligations of employers regarding the insurance plan. All Schedule 1 and Schedule 2 employers must register with the Board within 10 days of hiring and report their estimated wages. Schedule 1 employers are required to provide annual wage summaries to help determine premium amounts. The Board sets premium rates based on accident records and safety precautions taken by employers and can adjust premiums based on injury frequency. Employers can apply for cost transfers if a worker’s injury is caused by another employer. While Schedule 1 employers do not pay benefits directly to workers, Schedule 2 employers are responsible for their own costs and must pay benefits to injured workers. Additionally, Schedule 2 firms may be required to deposit funds with the Board for future claims and obtain insurance coverage for accident costs. Compensation and Prevention Summary The WSIA allows the Board to adjust premium rates for Schedule 1 firms based on their safety practices, accident records, compliance with first aid requirements, and workplace injury costs compared to industry standards (Section 82). Section 83 enables the Board to create programs that incentivize employers to reduce workplace injuries. The overarching goal of the WSIA is to promote health and safety in workplaces through various methods, including education and economic sanctions. Increasing premiums for firms with poor safety records serves as a financial motivator to encourage safer workplace practices, thus ensuring adequate funding for the insurance pool. In contrast, Schedule 2 firms, which are self-insured, do not face similar economic incentives to enhance safety, as they bear the full costs of accidents without the pressure of fluctuating premiums. Insurance Fund Summary The WSIA mandates that the Board maintains an insurance fund for Schedule 1 employers to ensure that sufficient funds are available to pay for benefits and operational costs when needed. Section 96 requires the Board to monitor the fund's sufficiency and prevent any individual class from being unfairly burdened by past accident costs. The Lieutenant Governor of Council has the authority to direct the Board to increase premiums to meet funding standards. Additionally, the Board can establish reserve funds for future accident costs, with these funds invested according to the Pension Benefits Act. If deficiencies arise, the Board can require additional premiums from all employers. Section 100 allows the Lieutenant Governor to make regulations under specific circumstances. Sections Not Covered Part IX of the Act deals with transitional rules. These rules are not within the scope of this course and hence, not covered. Part X deals with uninsured employment, and this area was briefly discussed earlier in this course. Decisions and Appeals Summary The WSIA grants the Board exclusive authority to make decisions on matters related to the Act, including classification of industries, determining injuries caused by accidents, and assessing compliance with return-to-work programs (Section 118). The Board's decisions are final and cannot be challenged in court, as outlined in the finality and privative clauses. If parties disagree with a decision

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