Week 5_6 Minerva 200 - Module Legislation, Codes and Standards PDF

# Legislation, Codes, and Standards ## Module Overview - This module covers the Canadian Legal System, Occupational health and safety (OHS) Legislation, The Consequences of Non-compliance, and Engineers and The Law. ## Upon Completion - Learners will be able to: - Demonstrate an understandin...

# Legislation, Codes, and Standards ## Module Overview - This module covers the Canadian Legal System, Occupational health and safety (OHS) Legislation, The Consequences of Non-compliance, and Engineers and The Law. ## Upon Completion - Learners will be able to: - Demonstrate an understanding of the Canadian legal system. - Discuss general OHS legal requirements. - Differentiate between codes, guidelines, and standards and describe some key national and international codes and standards. - Demonstrate an understanding for non-compliance with legal requirements including professional engineering legislation. ## Topic One: An Overview of the Canadian Legal System - **Welcome to Topic One:** An Overview of the Canadian Legal System - **Types of Law:** The law is a system of rules that a society or government develops to regulate how people conduct themselves. In our increasingly complex world, laws exist that affect almost all aspects of our lives: social relationships, economic activity, business, health, politics, education, and more. These laws protect our rights and freedoms as individuals, ensure fairness and equality, and provide a peaceful way to settle disagreements. - In Canada, the legal system is founded on laws from several different sources, the two most common being legislation and common law. ### Legislation - Legislation is the written law that is created by government. The different levels of government - federal, provincial or territorial, and municipal - all have the power to create legislation. - There are three types of legislation: statutes (acts), regulations, and bylaws. - Each of these types of legislation has the force of the law, but they're enacted differently. - **Statutes (also referred to as acts):** are enacted by the legislative arm of government, either by parliament (federally) or by the legislative assembly (provincially). - **Regulations:** contain the details of how an act is to be applied and enforced. Government departments and other government agencies are granted authority under an act to create regulations. - **Bylaws:** are created by municipalities. Like regulations, they contain the details of how the act will be applied. ### Common Law - Common law is a system of rules based on precedent, that is, past decisions that were made in a court or by a judge. Judges look at precedents when ruling on similar cases under similar circumstances. - All Canadian jurisdictions except Quebec use common law. - Quebec uses a civil code based on the French Code Napoléon (Napoleonic Code). Quebec's civil code contains a comprehensive statement of rules dealing with a wide range of topics. - Unlike common-law courts, courts in a civil-law system first look to a civil code, then refer to previous decisions to see if they're consistent. ### Legislation Hierarchy - The legislation system in Canada follows a hierarchical structure. - As we proceed down the hierarchy, the legislation becomes more detailed and specific. - **Example:** The province of Alberta has legislation in place that establishes minimum standards for safe and healthy practices in Alberta workplaces: - Occupational Health and Safety Act - Occupational health and Safety Regulation - Occupational Health and Safety Code ### Legislative Language - Legislation is usually written by legislative drafters: legal professionals who have specialized in drafting bills, regulations, by-laws, policies, and other documents. Legislative drafters use very specific language, choosing their words with care to ensure that the legislation says exactly what it is intended to say. - **When reading an act or regulation, pay careful attention to the wording, because in legislation, words matter.** - **"Shall" means "must".** Any element specified by the word "shall" is required. - **'Should' means the element is recommended but not necessarily mandatory.** - **'And' means that all the elements in a list are to be followed.** - **'Or' means that only one element or part of a list of elements is to be followed.** ## Topic Two: Occupational Health and Safety Legislation - **Welcome to Topic Two:** Occupational Health and Safety Legislation - **Occupational Health and Safety Legislation Across Canada:** - Occupational health and safety law is written and passed by federal, provincial, and territorial governments. - In Canada, the federal government, the ten provincial governments, and the three territorial governments each have their own occupational health and safety (OHS) legislation; 14 different jurisdictions and 14 different sets of OHS legislation. - It is important to understand OHS legal requirements because they set out what must be done to maintain health and safety in the workplace. ### Federal Legislation - **Employment and Social Development Canada (ESDC):** is the federal government department responsible for workplace health and safety. - Federal OHS legislation covers employees of the federal government, including Crown agencies and corporations regardless of their location in Canada. - The legislation includes: - **The Canada Labour Code**. Part II of the code focuses on OHS, and its stated purpose is "to prevent accidents and injury to health arising out of, linked with, or occurring in the course of employment to which this Part applies." - **The Canada Occupational Health and Safety Regulations (SOR/86-304)**, enabled under the Canadian Labour Code. - **The Canadian Centre for Occupational Health and Safety Act**. The Act establishes a national institute concerned with the study, encouragement, and cooperative advancement of occupational health and safety ### Provincial and Territorial Legislation - **Each province and territory has put in place an Occupational Health and Safety Act** (or a similarly named piece of legislation) and OHS regulations. - **This legislation usually applies to all workplaces except private homes**, where work is done by the owner, occupant, or servants. - Because the legislation differs somewhat between jurisdictions, you should always refer to the specific province's or territory's OHS legislation or contact the provincial or territorial department or agency responsible for OHS for OHS information that applies to you and your workplace. - For a list of federal, provincial, and territorial Canadian government departments responsible for OHS legislation, refer to the Canadian Centre for Occupational Health and Safety. ### Due Diligence - **An over-arching principle exists in Canadian OHS law known as due diligence.** - **In a general sense, due diligence refers to the care that a reasonable person takes to avoid harming other persons or their property. Clause 25(2)(h) of Ontario's Occupational Health and Safety Act states that "the employer is required to take every precaution reasonable in the circumstances for the protection of a worker."** - The Canadian Centre for Occupational Health and Safety (CCOHS) describes due diligence as: - "The level of judgement, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances. Applied to occupational health and safety, due diligence means that employers shall take all reasonable precautions, under particular circumstances, to prevent injuries or accidents in the workplace...it refers to the care, caution, or action a reasonable person is expected to take under similar circumstances." - **Another way to describe due diligence is to say that employers must do what is “reasonably practicable” to maintain a safe and healthy workplace.** - **Economic and Social Development Canada's Labour Program defines “reasonably practicable” as taking precautions that are not only possible but that are also suitable or rational, given a particular situation.** - **To exercise due diligence in the workplace, an employer must:** - Identify all workplace hazards. - Carry out necessary preventative measures to avoid incidents or injuries arising from these hazards. - Communicate appropriately to all necessary personnel. ### Rights and Responsibilities Reviewed - **OHS federal and provincial laws set out what must be done to maintain health and safety in the workplace. These laws also define the rights and responsibilities of different groups in the workplace, such as government, employers, managers, and employees.** - **Responsibility Matching Activity:** Match each responsibility with the workplace group that best matches. Some workplace groups can be used multiple times. ### OHS Legislation - OHS legislation covers a wide range of work activities, workplace facilities, and hazards. - **Examples include:** - Exposure to toxic chemicals/biological material hazards - Exposure to a non-life supporting atmosphere (e.g., confined space) - Exposure to hazardous energy (e.g., electrical, radioactive substances) - Equipment and falling hazards - Explosives - Flammable and combustible substances - Electrical installations. - Pressure equipment. - Buildings. - Steam generation or refrigeration systems. - Environmental protection (air, surface water, ground water) - Transportation of dangerous goods. - Professional engineering practice. - Land use (municipal zoning by-laws) - Regulatory penalties. ### Types of OHS Legislation - Some OHS legislation is very specific and prescriptive, while other legislation is more general and performance-based. - **Regardless of how specific the legislation is, OHS laws are mandatory.** Business owners, employers, employees - in fact, everyone in the workplace - must obey the law or face possible penalties or prosecution under the Canadian legal system. #### Performance-Based Legislation - Some OHS legislation is performance-based, which means it specifies the outcome to be achieved (i.e. the end result) but does not specify how that outcome is to be achieved. This means that employers may take different approaches to a task as long as they attain the specified outcome. - **Acts tend to be performance-based, setting out the general requirements an employer must follow to comply with OHS performance objectives without describing how those requirements must be met.** #### Prescriptive Legislation - Regulations tend to be prescriptive, which means they spell out the specific requirements of the legislation. Where a regulation prescribes a standard, duty, or procedure for a specific type of workplace (e.g. an industrial plant), the employer is required to meet the standard or perform those duties or procedures as specified. - **Regulations may vary in how specific they are.** For example, some regulations may apply to all workplaces in a general sense, while others may apply to a particular hazard or a particular type of work or workplace. ### Guidelines and Codes - In addition to acts and regulations, jurisdictions may also create guidelines or codes, such as codes of conduct, codes of practice, technical codes, voluntary initiatives, or non-regulatory agreements. - If a guideline or code is specifically referenced within an act or regulation as a means of performance, then it becomes enforceable under the law. - **In general, however, guidelines and codes are not legislatively required commitments. ** - Companies, associations, and other organizations may voluntarily make a guideline or code in order to influence or control behaviour for their benefit. - **Guidelines and codes can be considered best practice.** - **Following the requirements of a code or guideline is one way for companies, employers, and others to ensure they're practicing due diligence.** In other words, they're taking all precautions reasonable in the circumstances to maintain a safe and healthy workplace. - **Examples of codes used in the engineering profession include:** - Building codes - Fire codes - Electrical codes - Boiler Pressure Vessel and Pressure Piping Code - Industry codes (e.g., CIAC (Chemical industry Association of Canada), Responsible Care, API (American Petroleum Institute), CIM (Canadian Institute of Mining) etc. - MIAC (Major Industrial Accidents Council of Canada) land-planning use guidelines. ### Standards - **Standards are publications that establish accepted practices, technical requirements, design, or management systems.** By using standards, organizations ensure products and services are consistent, compatible, safe, and effective. - **As with guidelines and codes, businesses are not legally required to follow a standard.** - **But it is considered a best practice.** If a standard is included in a government statute or regulation, however, complying with the standard is mandatory under the law. #### Standard Development - Standards are usually developed by technical committees of industry experts. - The development is overseen by a recognized organization and open to input from all interested parties. - **A standard must be documented and available to the public.** - **A method for verifying that organizations are complying with standards must be in place.** #### Standard setting Organizations - There are several standard developing organizations whose standards can be cited in Canadian law. - **Examples include:** - Canadian Standards Association Group (CSA Group) - Canadian General Standards Board (CGCB) - American National Standards Institute (ANSI) ## Topic Three: The Consequences of Non-compliance - **Welcome to Topic Three:** The Consequences of Non-compliance - **When Legislation Isn't Followed:** Even though OHS legislation exists, serious incidents continue to occur where property is damaged, the environment is threatened, and people are injured or killed. - **Examples:** - Elliot Lake, Ontario - Ocean Ranger, Newfoundland - Westray Coal Mine, Nova Scotia ### Penalties for Non-compliance - **If an organization, employer, engineer, or other party fails to comply with OHS legislation, they can face several penalties under different legal jurisdictions, including:** - The Canadian Criminal Code. - Federal, provincial or territorial OHS acts. - Provincial Professional Engineering Associations (in the case of an engineer) - **Depending on the jurisdiction, the Ministry (or Department) of Labour or the provincial workers' compensation Board (WCB) enforces OHS laws.** - Each jurisdiction employs inspectors who visit workplaces to ensure companies are complying with OHS legislation. - **If a serious incident occurs, inspectors conduct an investigation and determine if a charge should be laid under the appropriate section(s) of the OHS Act or regulation.** - An individual or company charged with noncompliance may then need to appear in court where a fine or another penalty could be imposed if they're convicted. - The police are not normally involved in this process unless charges are laid under the Criminal Code. ### The Canadian Criminal Code - **On March 31, 2004, federal legislators passed Bill C-45, the Westray Bill.** - The Bill added Section 217.1 to the Canadian Criminal Code, which made employers legally responsible for protecting the safety of their employees. - **Section 217.1 of the Criminal Code reads:** Every one who undertakings, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person arising from that work or task." - **The amendment also added Sections 22.1 and 22.2 to the Criminal Code** imposing criminal liability on organizations and their representatives (e.g. managers, supervisors) for negligence (22.1) and other offences (22.2) ### Penalties Under the Criminal Code - The changes to the Criminal Code, made as a result of the Bill C-45 amendments, mean that a company or an individual can be charged who: - **Directed or had authority to direct the work of others.** - This means someone who: - Had control over who could do the work. - Had control over what methods or tools were used. - Trained the individuals who performed the work. - Had authority to stop the work if they considered it to be unsafe. - **Did not take reasonable steps to protect workers.** - This means someone who: - Showed a wanton or reckless failure to protect workers. - **An organization or individual convicted under the Criminal Code can face severe penalties.** | Incident | Individuals | Organizations | |---|---|---| | Incident leading to injury | 10 years imprisonment | $100,000 | | Incident leading to death | Life imprisonment | No financial limit | | Summary conviction (for less serious offenses) | | | | Indictment (for serious offenses) | | | ## Topic Four: Engineers and The Law - **Welcome to Topic Four:** Engineers and The Law - **Legislation for Professional Engineers:** Many professional associations have their own provincial legislation that allows them to license and regulate their professions. Professional engineers are one such group. ### Professional Engineers Ontario (PEO) - In Ontario, for example, the Professional Engineers Ontario (PEO) licenses and regulates professional engineers in that province. - **PEO's mandate is to serve and protect the public interest by setting and upholding high academic, experience and professional practice standards for the engineering profession.** - **PEO operates under the authority of Ontario's Professional Engineers Act.** - **In order to use the designation "Professional Engineer" and work as a professional engineer in Ontario, an individual must be licensed by the Professional Engineers Ontario.** - **Section 12(1) of the Professional Engineering Act states that:** "No person shall engage in the practice of professional engineering, unless the person is the holder of a licence." - **Section 33 of Regulation 941/00 under the Professional Engineering Act sets out the specific requirements with respect to education, experience, and practice examination that an individual must meet in order to receive a licence.** - "Each applicant for a licence shall comply with the following requirements..." - **Other provinces and territories have similar professional engineering regulatory bodies as Ontario and similar legislation and licensing requirements.** - A list of provincial engineering regulatory groups across Canada is available on the Engineers Canada website. ### Penalties for Working without a Licence - **Earlier in this module, we looked at the penalties that individuals and companies could face if they fail to comply with OHS legislation.** - **Similarly, engineers and companies that don't comply with professional engineering legislation could face penalties from their provincial association.** - **Professional engineering associations such as PEO have been granted authority under the Professional Engineers Act to enforce their legislation and take legal action against individuals or companies who practice engineering without a licence.** - **Section 40(1) of the Professional Engineers Act sets maximum fines for individuals and firms practicing without the necessary licences.** - These fines are $25,000 for a first offense and $50,000 for each subsequent offense. - **Section 40(2) of the Act also authorizes fines of up to $10,000 for a first offense and $25,000 for each subsequent offense, for unlicensed people who:** - Use the title "professional engineer" or an abbreviation or variation thereof as an occupational designation. - Use a term, title, or description that will lead others to believe that the person may engage in the practice of professional engineering. - Use a seal that will lead others to believe that the person is a professional engineer. ### Self-Check - **The following questions are intended to help you monitor your own learning. ** - If you have difficulty answering these questions, review the content in this section by returning to the previous page(s), or by selecting the menu to navigate to a section you want to review. - **Click on a question to view the details.** - To indicate your answer, click on the appropriate box. - **When you have successfully answered all questions (required to move ahead), click the "Next" button to continue.** ## Module Summary - You have reached the end of this module. - **You should now be able to:** - Demonstrate an understanding of the Canadian legal system. - Discuss general OHS legal requirements. - Differentiate between codes, guidelines, and standards and describe some key national and international codes and standards. - Demonstrate an understanding for non-compliance to legal requirements including professional engineering legislation. - **You can review the course content anytime by accessing the course menu.** - **If you're ready to take the module exam, click the "Complete" button below to close this module and access the exam.**