Duty of care Employers are still required to ensure it, even if they are exempt from OHS regulations
May 9 was the 20th anniversary of the Westray mine disaster that took the lives of 26 Nova Scotia coal miners. From that awful event Bill C-45, commonly known as the Westray Bill, was enshrined in the Criminal Code of Canada. Since the “Criminal Liability of Organizations Act” became the law, its influence has been slowly but inexorably expanding as awareness of this new law increases.
Minister of Defence Peter MacKay has joined with the United Steelworkers to raise awareness among the nation’s law-enforcement community. Minister MacKay has taken the matter up with Canada’s attorney general and the Steelworkers national director Ken Neumann will be delivering information packages and meeting with attorney generals in each province and territory.
It has now arrived in Alberta. The Alberta Federation of Labour has written an open letter to Alberta Justice Minister Jonathan Denis advising of the existence of this law. I had an opportunity to discuss C-45 and its impact on the Alberta agriculture industry with Minister Denis. The minister was asked in the legislature about C-45 and the Alberta agriculture industry and he stated, “Let me assure this House that my ministry doesn’t hesitate to pursue criminal charges where the investigation indicates that it is warranted.” (Hansard May 31, 2012 pg 127).
This should be of interest to employers in Alberta who operate under the farm and ranch exemption of the Occupation Health & Safety Act (OHS), because the exemption denies these employers any protection from the act and leaves them completely exposed to the Criminal Code of Canada! Exempted employers have been lulled into believing that being exempt from the provincial regulations means they can pick and choose which, if any, safety measures they must employ.
The Criminal Code contains no exemption for Alberta’s agriculture industry and codifies a “duty of care” for all employers. Those who operate within the provincial OHS standards enjoy the protection of a legislated partnership between the provincial government, the worker and the employer.
This legal covenant when exercised in good faith, has long been held by the courts to meet the test of due diligence imposed by Canadian jurisprudence and is the effective standard. Without it exempted employers must determine what the standard is and adhere to it on their own. Add to that this same cohort of employers is actively discouraged from purchasing WCB protection (most don’t have it), you get a risk profile that is truly breathtaking!
Fortunately former premier Stelmach, is back down on the farm. We now have a new worldly premier who understands the law and due process. She knows the current policy is outdated and in need of reform. Alberta’s exempted employers would do well to work with our new premier rather than ignoring our modern reality and just hoping for the best.