COSH 208 Study Exam 1-6 PDF

COSH 208 Module 1 **What is Law?** - - - - - - **The Concept of Justice** - - - - - - - - - **The Rule of Law and Due Process** - - **Origin of Canadian Law and Legal Traditions** =============================================== - - - - - - - - **Classification of Law:** - - - - - - - - - - **Constitutional Law and Jurisdiction for OHS** =============================================== - - - - - - - **The Constitution Act, 1867** - - - - - **The Constitution Act, 1982** - - - - - - - - - - - - - - The Crown - - - - - - - - - - Separations of Power: - - - - - - - - - - - - - - - Intra and Ultra Vires - - - - - - - - - - - - - - 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 - - Occupational Health and Safety (OHS) Laws - - 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 - - - - - - 2\. Regulations - - - 3\. Case Law - - - 4\. Guidelines - - - Key Points - - - 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. 2. 3..**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. 2. 3. **Key Point**: Judges can distinguish cases if they find significant differences, in which case the earlier decision may not apply. #### **Types of Precedents:** 1. 2. ### ### **Check up (P1):** You have completed the exercise! Below is a list of correct matches: **Textualism** Intentionalism Pragmatism Persuasive Precedent Binding Precedent ### **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. 2. 3. 4. #### **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: - - - 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:** - - - - #### **Ratio Decidendi (Ratio):** - #### **Obiter Dictum (Obiter):** - 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: - - ### **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 \[1978\]*):** 1. 2. 3. #### **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 \[2004\]*):** - - 1. 2. This concept helps ensure **compensation** for victims and **deterrence** to prevent future harm. #### **When Vicarious Liability Applies:** 1. 2. 3. #### **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:** - - - - - ### **Lawsuits:** - - - 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:** - - ### **Criminal Punishment Theories:** 1. - - 2. - - Most systems combine these two views to balance justice and societal benefit. ### **Proportionality in Punishment:** - - ### **Deterrence:** Punishment also aims to **deter** future crimes: 1. 2. ### **Elements of a Crime:** Two major elements must be proven in any criminal case: 1. - 2. - 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: - - 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: - - - ### **Two Key Types of Jurisdiction** 1. - - 2. - - ### **Jurisdiction in Occupational Health and Safety (OHS)** Different **OHS regulators** have specific jurisdictions: - - **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** - - 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. 2. 3. 4. 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. - #### **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** - - - 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: - - - 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. 2. 3. 4. 5. 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. - - - - - 2. - - 3. - - 4. - - 5. - - 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: - 1. 2. 3. 4. 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. - - - - - #### **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: - - 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. - - - - - - - - - - #### **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. - - - - - ### **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: - - - - - - - - - - - - - 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: - - - - - - - - - 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: - - 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 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: - - - - - - - - **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: - - - - **Worker Responsibilities\ **Workers must also participate actively in their return to work by: - - - **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: - - 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: - - - 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: - - - 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: - - - **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: - - - 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: - - - - - - - - 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: - - - - 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:** - - - - - - - **Points of Clarifications:** - - **Change-over Benefits:** - **Review of Payments:** - **Examples:** - **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. 2. - - - 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** - - - - - - - ### **Spouse with Children** - - ### **No Surviving Spouse** - - ### **Additional Provisions** - - ### **Lump-Sum Payment for Surviving Spouse:** 1. 2. - - 3. ### **Periodic Payments:** 1. - - - - - 2. - ### **Example Calculations:** - - - - - - - - ### **Administration Summary (Sections 49--66)** The WSIA addresses various administrative issues from sections 49 to 66. Here\'s a simplified overview: - - - - - ### **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, they can file a written notice of objection within specific timeframes, and the Board may reconsider its decision or offer mediation. **Judicial Review:** This is the process through which a court reviews decisions made by the Board under the WSIA. The Board makes its decisions based on case specifics rather than legal precedents. If the evidence for and against a claim is roughly equal, the decision favors the worker. If a party believes the Board made an error, they can file a written notice of objection within six months (or 30 days for certain decisions). The Board can reconsider its decision and may offer mediation. **Appeals Tribunal:** Established in section 123, the Appeals Tribunal hears appeals of final Board decisions regarding health care, benefits, and classifications. It can uphold, modify, or reverse these decisions based on case merits, not legal precedents. The Tribunal issues written decisions within 120 days and may refer policies back to the Board for review if inconsistent with the WSIA. Both the Board and the Tribunal have the authority to summon witnesses and require documents, and they cover witness expenses. ### **Enforcement Summary** Starting with section 135, the WSIA outlines the Board\'s enforcement powers, allowing it to examine employers\' records and conduct investigations to verify: - - - - The Board can inspect premises to ensure the safety of machinery and worker precautions. Part XII details the Board\'s rights to enforce premium payments and addresses issues related to contractors and subcontractors in construction. Offences include making false statements, failing to report changes in circumstances, and non-compliance with registration and reporting requirements. If a corporation commits an offence, responsible directors or officers may also be charged. Prosecutions must occur within two years of the offence being known, except for false statements, which have no time limit. Penalties for convictions include: - - All fines contribute to the insurance fund. ### **Administration of the Act Summary** This section outlines administrative aspects of the WSIA, confirming that the Workers\' Compensation Board is now called the Workplace Safety and Insurance Board (WSIB). The WSIB has various powers, including: - - - - - - The governing Board includes a chair and president, both appointed by the Lieutenant Governor, along with at least nine members representing workers and employers. Every five years, the WSIB develops an annual strategic plan in agreement with the Minister of Labour. Section 168 mandates a value-for-money audit of one program each year. The Workplace Safety and Insurance Appeals Tribunal and the Offices of Worker and Employer Advisors continue to operate. The Office of the Worker Advisor assists non-unionized workers and their survivors, while the Office of the Employer Advisor helps employers with fewer than 100 employees. Module 6:\ \ **Introduction:** Previously, we learned about compensating workers for job-related injuries or illnesses. Now, we'll focus on the laws designed to prevent these incidents. While most of this legislation is provincial, there are federal laws like the Canada Labour Code, Part II. In Ontario, it's the Occupational Health and Safety Act, and similar laws exist in other provinces. Prevention laws are broad and cover overall workplace health and safety, with detailed rules provided through regulations. Key concepts include the internal responsibility system (IRS), due diligence, worker rights, and **bipartidism**. Understanding these helps us apply the legislation to real situations. The legislation sets duties for all workplace parties to create a safe environment, which leads to specific programs ensuring compliance. This course focuses on Ontario's law, with references to others when needed. Be sure to consult the actual legislation online (e.g., via e-Laws or CanLii) as we go through the material, since each province may have different approaches. **The Internal Responsibility System (IRS) Summary:** The IRS, rooted in British and Saskatchewan legislation, assigns health and safety responsibilities to all levels of an organization. Its modern version came from James Ham's 1976 report after a miners\' strike in Elliot Lake, Ontario, over unsafe working conditions. Ham's report emphasized that safety is as important as profitability and that everyone in the workplace---workers, supervisors, and management---must work together to maintain a safe environment. Ham introduced the idea that health and safety should be integrated into the structure of organizations, with each party, from top management to workers, playing a role. His vision also included worker auditors and health and safety committees. This concept is now foundational to Canada's health and safety laws, even if the term IRS is not always used, except notably in Nova Scotia. In an ideal workplace, all parties understand their roles within the IRS and act on them to prevent injuries and illnesses. However, in reality, issues such as lack of safety knowledge, conflicting priorities, or a focus on profit over safety can weaken the system. When the IRS fails, external systems step in to address workplace hazards, which will be covered in the next lesson. **The Three Worker Rights Summary:** In Canada's health and safety legislation, workers are granted three fundamental rights: [the right to know, the right to refuse unsafe work, and the right to participate in health and safety activities]. These rights serve as safeguards, particularly when the Internal Responsibility System (IRS) isn\'t functioning well, enabling workers to step in and restore workplace safety. ### **1. The Right to Know** Workers have the right to know about the hazards they may face in their workplace. This includes being informed about risks, safety procedures, and any new materials or practices. In a healthy IRS, management would naturally provide this information through training and open communication. If workers have to insist on their right to know, it signals that the IRS is not working properly. ### **2. The Right to Refuse Unsafe Work** Workers can refuse tasks they believe are unsafe for themselves or others. The law outlines a process to handle these refusals and ensures that workers are protected. Ideally, in a well-functioning IRS, such refusals shouldn't occur, because safety concerns should be addressed before work starts. A refusal is often a sign that the IRS has failed, as it indicates a serious disagreement over safety between workers and management. ### **3. The Right to Participate** Workers have the right to be involved in workplace safety, usually through health and safety committees. If the IRS is functioning effectively, workers would already be engaged in maintaining safety. However, if committee members are constantly addressing safety issues, this is a sign that the IRS isn't working as intended. Busy safety committees often indicate that the IRS is weak or nonexistent, rather than proof of a strong system. In conclusion, while the three rights are critical to protecting workers, they are often a fallback when the IRS isn't functioning properly. In workplaces where the IRS has yet to develop, these rights can push organizations toward creating a safer environment. **Bipartidism Summary:** Bipartidism views the workplace as consisting of two main groups: workers and management. Health and safety laws often reflect this division, focusing on employers and employees. However, James Ham, who developed the Internal Responsibility System (IRS), saw the workplace as more complex, with distinct roles at different levels, including directors, managers, supervisors, and workers. Ham believed that everyone in the workplace has a unique responsibility for safety. In the 1980s and 1990s, some places, like Ontario, simplified this view by grouping the workplace into just two layers---workers and management---and aiming to give them equal power in health and safety matters. While laws require \"bipartite committees\" (made up of representatives from both groups), these committees are advisory, and the ultimate responsibility for safety remains with the employer. Good employers go beyond just forming safety committees. They use the IRS to engage everyone in the workplace to ensure a safe environment. Even though committees may be required by law, a well-functioning IRS, where all parties fulfill their safety roles, might make a committee less necessary. ### **Regulations and Other Guidance Summary** **Occupational Health and Safety Act (OHSA)** - - #### **Regulations** - - - - - #### **Key Points** - #### **Other Categories of Guidance** 1. - 2. - 3. - 4. - #### **Conclusion** Occupational health and safety law encompasses a complex framework of legislation and guidance designed to assist workplace parties in maintaining safe environments for workers. The interplay between acts, regulations, guidelines, codes, and standards ensures that workplaces adapt to new challenges while upholding safety as a priority. **The OHSA -- Parts and Definitions Overview** The **Occupational Health and Safety Act (OHSA)** in Ontario is structured into 71 sections divided into ten parts. Each part groups sections that deal with similar topics, aiding in the organization and understanding of the Act. Here are the main parts of the OHSA: #### **Parts of the OHSA** 1. 2. 3. - 4. 5. 6. 7. 8. 9. 10. #### **Importance of Definitions** - - - - - #### **Examples of Key Definitions** 1. - - - 2. 3. 4. #### **Variations Across Provinces** - - - - ### **Conclusion** Understanding the organization and definitions within the OHSA is essential for compliance and effective application of occupational health and safety standards. As definitions can change and vary between provinces, staying informed about these terms is crucial for workplace safety and legal adherence. The OHSA provides a framework that, while consistent with other provincial legislation, contains unique characteristics that can significantly impact its application in different jurisdictions. ### **Summary of OHSA Application in Ontario** **Section 2** of the Ontario Occupational Health and Safety Act (OHSA) applies to the government (Crown). However, **Section 3** outlines specific exemptions where the Act does not apply: 1. 2. 3. These exemptions have largely been eliminated through regulations rather than amendments to the Act: - - #### **Legal Precedents** The application of the Act has been clarified through court cases: - - #### **Recent Amendments** In **April 2012**, amendments included: - - This framework helps to clarify who is covered under the OHSA and the responsibilities of various parties to ensure workplace safety. ### **Overview of the Canada Labour Code (CLC)** The **Canada Labour Code**, specifically **Part II**, governs workplaces regulated by federal legislation. Here are the key points regarding its structure and definitions: 1. - 2. - - - - This structure ensures clarity and consistency in applying the regulations related to occupational health and safety in federally regulated workplaces. **Administration and Codes of Practice in the Ontario OHSA** **Section 5** allows the Minister or Deputy Minister to delegate their powers or duties, while **Section 6** permits the appointment of inspectors, who can also be designated as directors with equivalent powers. **Section 7** mandates that the Deputy Minister issue appointment certificates to inspectors, which must be presented upon request when exercising their powers under the Act. To maintain consistency, important section numbering remains unchanged even after amendments. For example, sections that were repealed (like sections 13 to 19) still retain their numbers without content. Additionally, **Section 21** allows for the appointment of advisory committees and individuals to advise the Minister on OHSA matters. **Section 22** states that the costs associated with administering the Act and its regulations are covered by the **Workplace Safety and Insurance Board (WSIB)**, funded through employer premiums. Furthermore, **Section 32.1** introduces codes of practice approved by the Minister, published in the Ontario Gazette. Compliance with these codes is deemed equivalent to meeting regulatory requirements, and failing to comply does not automatically constitute a breach. A defense can be established if the actions taken provide equivalent protection. Alberta is noted as a province that extensively utilizes codes of practice, reflecting a broader trend in occupational health and safety regulations. **Prevention Overview\ **The Ontario Occupational Health and Safety Act (OHSA) underwent significant changes in 2011 to enhance accident prevention by shifting responsibilities from the Workplace Safety and Insurance Board (WSIB) to a new agency. This led to the introduction of the Chief Prevention Officer (CPO) in Section 1 of the Act. Most amendments related to prevention are found in Part II.1, which encompasses Sections 22.2 to 22.9. **Section 22.2** establishes the Prevention Council, outlining its composition, appointment of members, and duties, which primarily involve advising the Minister and CPO on workplace injury and disease prevention strategies and funding. **Section 22.3** defines the CPO's role, including developing a provincial occupational health and safety strategy. The CPO is also responsible for advising the Minister on prevention matters, establishing service standards, and certifying designated entities. This section emphasizes the need for the CPO to create a strategy with goals and performance indicators, which must be approved by the Minister and reported annually. **Section 22.4** addresses funding and service delivery changes. The Minister must consult the CPO for significant changes, and the CPO must seek endorsement from the Prevention Council when proposing changes, with regulations established to guide these determinations. **Section 22.5** pertains to designated entities, such as safe work associations and training centers eligible for Ministry grants. These entities must meet specific standards set by the Minister and adhere to ongoing compliance requirements. Existing designations from the WSIA remain valid until new standards are published. **Section 22.6** mandates that designated entities comply with both established standards and directives from the Minister. Non-compliance may result in penalties, including reduced grants or loss of designation. **Section 22.8** outlines the process for when the Minister must assume control of a non-compliant entity, including the appointment of an administrator and the administrator\'s responsibilities. **Sections 7.1 to 7.7** focus on establishing training standards. **Section 7.1** gives the CPO the authority to approve training programs meeting established standards. **Section 7.2** allows the CPO to create those standards and approve trainers. **Section 7.3** permits amendments to the standards, which must be published promptly. **Section 7.4** enables the CPO to set time limits for program approval and revoke it when necessary. **Section 7.5** allows the CPO to collect information on workers\' completion of training programs and share it with their consent. **Section 7.6** mandates that the CPO can establish specific training requirements for certified committee members, recognizing existing certifications under previous legislation. Finally, **Section 7.7** permits the CPO to delegate certain authorities to other Ministry employees, enhancing operational efficiency. ### **Duties -- General** Health and safety legislation delineates specific duties for various workplace parties to ensure worker safety and mitigate hazards. Meeting these obligations is crucial; failure to do so can expose workers to risks and lead to legal liabilities for those responsible. While provinces like Ontario, the federal government, and Nova Scotia have comprehensively defined these duties, others, such as Saskatchewan and British Columbia, have more limited or generalized statements of responsibility. Failure to fulfill a duty can result in legal penalties, but individuals may defend themselves by demonstrating due diligence, which necessitates an understanding of the assigned duties. A robust health and safety system, or Occupational Health and Safety (OHS) management system, is essential to fulfill these duties and safeguard workplace safety. ### **Ideas About Duties** **Personal Responsibility\ **Duties are assigned to individuals and cannot be delegated to evade liability. While authority can be delegated, the underlying responsibility remains personal. **Interconnected Duties\ **Duties among workplace parties are interrelated, necessitating cooperation among employers, supervisors, and workers. **Regulation Dependent vs. Independent Duties\ **Some duties are clearly defined in regulations (\"regulation dependent\"), while others are more general (\"regulation independent\"). This distinction can lead to judicial interpretations that differ from the explicit wording of the legislation. **Due Diligence\ **Due diligence serves as a defense against accusations of breaching duties. To successfully employ this defense, individuals must prove that they took reasonable steps to fulfill their responsibilities. ### **Workplace Parties** **Licensee\ **In Ontario, \"licensee\" refers to individuals holding licenses, such as those in logging operations. Their duties include ensuring safety when hiring employers to work in licensed areas, as outlined in Section 24 of the OHSA. **Self-Employed Persons\ **In Nova Scotia, self-employed individuals must protect their health and safety and that of others affected by their work, as specified in Section 18 of the Nova Scotia OHS Act. **Owners\ **Owners have specific duties under Ontario\'s Section 29, including submitting plans to the Ministry before commencing work. Nova Scotia\'s Section 19 covers owners more generally, emphasizing safety obligations related to designated substances. **Suppliers\ **Suppliers in Ontario, Nova Scotia, and Alberta must ensure that their products are safe and comply with relevant laws. Ontario's Section 31, Nova Scotia's Section 16, and Alberta's Section 2 (3) and (4) outline these responsibilities. Architects and engineers also share obligations when providing guidance or certifying documents. **Health and Safety Professionals\ **Only Nova Scotia explicitly mentions health and safety professionals, assigning them duties to provide accurate information and ensure safety in their practices, as noted in Section 20. **Contractors and Constructors\ **Duties for contractors and constructors are specified in various acts. In Ontario, constructors are defined under Section 23, emphasizing communication on construction sites. Nova Scotia and Alberta also assign specific responsibilities to contractors. In Nova Scotia, Section 14 addresses contractors\' obligations regarding workplace safety, while Alberta discusses the role of the \"prime contractor\" in Section 3, particularly in multi-employer environments. ### **[Assigned Duties for Workplace Health and Safety] Duties -- Specific for Directors and Officers and Employers** #### **Directors and Officers** Directors and officers are considered the \"controlling minds\" of an organization. Historically, they have been able to delegate health and safety responsibilities to others while attempting to shield themselves from liability. However, as health and safety legislation has evolved, these individuals increasingly find themselves accountable for failing to meet their duties. For instance, in Ontario, Section 32 of the Occupational Health and Safety Act imposes a duty on directors and officers to ensure compliance with the Act and its regulations, as well as any orders from the Ministry of Labour, Training and Skills Development (MLTSD). This broad duty emphasizes their accountability. Similarly, in Saskatchewan, Section 60 states that any officer, director, manager, or agent involved in an offence is also guilty of that offence and subject to penalties, even if the corporation is not charged. This principle is echoed in the Canada Labour Code, Part II, under Section 149, which holds federal directors and officers similarly accountable. #### **Employers** Employers are generally recognized as the chief executives responsible for worker health and safety. In Ontario, Sections 25 and 26 of the Act outline the duties assigned to employers, with Section 25 applying universally and Section 26 targeting workplaces with occupational health services. Section 25 emphasizes the need for employers to provide necessary equipment, maintain it in good condition, and ensure compliance with prescribed safety measures. Additionally, the general duty clause in Section 25(2)(h) requires employers to "take every precaution reasonable in the circumstances for the protection of a worker." This allows for legal action even when no specific regulation has been violated. An important amendment in 2017 added Section 25.1, prohibiting employers from requiring workers to wear elevated-heel footwear unless necessary for safety. Other jurisdictions, like Nova Scotia and Alberta, have similar general duty clauses and specific employer responsibilities, with Alberta focusing on written policies and codes of practice. ### **Duties -- Specific for Supervisors and Workers** #### **Supervisors** The duties of supervisors are not explicitly detailed in many jurisdictions. However, Saskatchewan outlines specific responsibilities, primarily involving ensuring that workers comply with the Act and regulations (Section 17(2)). In the federal jurisdiction, there is no separate specification for supervisors. However, the Canada Labour Code, Part II, identifies individuals in managerial or supervisory roles as potentially guilty of offences under Section 149(c). In Ontario, Section 27 of the Act establishes the duties of supervisors, which largely parallel those of employers. Supervisors are mandated to take reasonable precautions for worker protection, reinforced by the supervisory version of the general duty clause. #### **Workers** Workers\' duties in Ontario are categorized into requirements and prohibitions under Section 28. The requirements include complying with the Act, using personal protective equipment, reporting equipment defects, and notifying about any hazards. Conversely, Section 28(2) outlines prohibited activities, such as removing protective devices or engaging in unsafe behavior. The federal regulations provide a longer list of worker duties without negative phrasing, promoting a proactive approach to safety. Nova Scotia legislation introduces a general duty clause, emphasizing the worker\'s responsibility to consider the safety of others in the workplace and to notify employers about safety issues. In Alberta, while there is no general duty clause, workers are still obligated to cooperate in protecting not only their own health and safety but also that of their coworkers and other individuals present at the work site. Saskatchewan adds a unique element, requiring workers to "take reasonable care" for their safety and that of others while also addressing harassment issues. ### **Violence in the Workplace** #### **Overview** The impact of workplace violence is profound, as highlighted in the video *The Tragedy of Lori Dupont: Ten Years Later* (10:57). This tragedy underscores the urgent need for legislative changes to address workplace violence and harassment across Canada. In response to these issues, Canadian jurisdictions are increasingly enacting legislation aimed at preventing workplace violence. The federal government has established regulations under Part XX of the Canada Occupational Health and Safety Regulations, entitled *Violence Prevention in the Workplace*. This regulation defines workplace violence and imposes a duty on employers to develop and display a violence prevention policy. #### **Federal Legislation** As part of the policy development process, employers are required to identify factors contributing to workplace violence and assess potential risks. This assessment must be conducted in consultation with a workplace committee. Following the assessment, employers are tasked with developing a comprehensive program to implement control measures that either eliminate or minimize the risk of workplace violence. Training is a key component of this program, which must be reviewed and updated every three years. This regulation has been in effect for federal workplaces since 2008. #### **Ontario Legislation** Ontario has implemented similar legislation, which came into effect in 2010. Found in Section 32.0 of the Occupational Health and Safety Act, this amendment explicitly addresses workplace violence and harassment. Section 32.0.1 mandates employers to prepare and post written policies regarding workplace violence and harassment, which must be reviewed at least annually. Workplaces with five or fewer regularly employed workers are exempt unless otherwise directed by an inspector. Sections 32.0.2 through 32.0.5 detail the requirements for implementing the violence prevention program. This includes procedures for summoning immediate assistance, reporting incidents, conducting investigations, and managing incidents. Employers must also assess risks of workplace violence and share their findings with the committee. Importantly, Ontario legislation uniquely requires addressing potential domestic violence in the workplace and developing a response plan for such incidents. Additionally, employers must disclose any known history of violence associated with individuals who may pose a risk to workers. The policy must also include procedures for ongoing risk assessment and communication with the workplace committee. #### **Saskatchewan Legislation** Saskatchewan was a pioneer in this area, enacting workplace violence and harassment legislation as early as 1993. The province's regulations define both workplace violence and harassment and require employers to develop and implement policies addressing these issues in consultation with workers or a committee. The comprehensive policy requirements are outlined in Section 37 of the regulations, demonstrating Saskatchewan's commitment to workplace safety.

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