In a recent decision of the Ontario Court of Appeal they stated that the general duty clause in the Occupational Health and Safety Act, can impose higher obligations than specific requirements in regulations. They concluded the following in the case involving Quinton Steel with respect to a case involving guard rails:
"It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid." – Emphasis added in bold.
Based on this decision, the general duty clause could require employers to do more than the prescriptive requirements of any hazard-specific regulations. Some might argue that this has expanded the scope of an employer's obligations. However, what this decision has affirmed is that regulations should be considered as "the low-water mark" when it comes to safety.
It is therefore essential that employers understand exactly what and how they will keep their obligations. This requires greater consideration when it comes to duty and liability as well as other categories of obligations:
Micro-means (prescriptive)
Macro-means (management-based)
Micro-ends (performance-based)
Macro-ends (duty and liability)
It is common for employers to focus on the prescriptive elements as these can be more easily quantified and measured. Whereas, the others often require the establishment of systems and processes to achieve standards that go above and beyond prescriptive elements. To address these companies will implement processes to address uncertainty and the management of risk, along with continuous improvement specifically with respect to performance and outcomes.
A primary difference between following prescription compared with duty and liability obligations is the latter requires employers to be more proactive with their compliance. And this begins with taking ownership for each obligation and not waiting for an audit or a fine for improvements to occur.
There will always be more risk than a company can contend with and so each company must decide which risks really matter. When it comes to duty of care the decision should always side in favor of employee safety.
If you want to be more certain about your compliance you may want to consider joining – The Proactive Certainty Program™ – designed to help you avoid – The Reactive Uncertainty Trap™. Visit our website at www.leancompliance.ca for more information on how to join.
Sources:
[1] - http://www.occupationalhealthandsafetylaw.com/in-important-decision-ontario-appeal-court-says-that-general-duty-clause-in-ohsa-can-impose-higher-obligations-than-specific-requirements-in-regulations?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration
[2] - Canadian Occupational Safety, www.cos-mag.com, "Regulatory compliance not enough: Court", Jeremy Warning
