Defining "Danger"

The definition of "danger" within s.122(1) is being repealed and replaced with the following:

"danger" means any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered;

The new and narrower definition removes previous language referencing hazards, conditions, and activities that pose a non-imminent threat to life or health. The definition of danger no longer references hazards that my lead to chronic health issues.

Redefining "danger" is particularly important when viewed within the purview of work refusals. Section 128 of the Canada Labour Code ("CLC") grants workers the express right to refuse unsafe work under 3 scenarios:

(a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

(b) a condition exists in the place that constitutes a danger to the employee; or

(c) the performance of the activity constitutes a danger to the employee or to another employee.

Each of these scenarios requires the presence of a now re-defined danger. As an employer it is important to understand the new definition of danger does appear to limit the types of hazards that trigger a worker's right to refuse unsafe work, but employers will remain obliged to protect workers against all risks that arise out of the workplace.

Work Refusals

The work refusal provisions have been further amended with respect to workplace response obligations. Employers will now be required to immediately investigate the matter in the presence of the employee and prepare a written report outlining the findings of the investigation. This report will be forwarded to a workplace health and safety representative or committee.

Previously, an employer was obliged to take immediate corrective action if they agreed the work was unsafe to perform, and investigate only if there was a continued work refusal. Under the new language, a continued work refusal escalates the issue to a workplace safety committee for further investigation. A report must be produced by the investigating committee and the employer must then review the report, determine whether a danger exists, and take corrective action if necessary. If the employee continues the work refusal, the employer must notify the Minister of Labour (the previous version required notification of a health and safety officer).

The focus of these amendments is on the internal management of occupational health and safety issues and the promotion of the Internal Responsibility System (IRS). Practically speaking, these new provisions will require employers to designate a management representative(s) to investigate and report on work refusals rather than depending solely on a joint health and safety committee or ministry of labour officers.

One piece of good news for employers is that the amendments have also broadened the Minister's power to dismiss work refusals without interrupting the worksite for an investigation. The new s.129(1) allows the Minister to forego an investigation when the matter would be more appropriately dealt with through other means (i.e. Part I or III of the CLC); the matter is trivial, frivolous or vexatious; or the employee's complaint is made in bad faith. If the Minister (or a duly appointed representative) decides not to proceed with an investigation then the employer will be notified and the employee's right to refusal (without reprisal) is extinguished.

The network of occupational health and safety rights and obligations is often complex and difficult for employers to apply. It is important to keep in mind that these amendments will only affect federally regulated workplaces.

Note: This a reprint of an article by Andrew Cogswell of CCPartners.