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Know Your Role – A Regulator’s Mischaracterization can be Fatal to an OHS Prosecution | The HR Space

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Labour, Employment and Human Rights Bulletin

When a person applies for a job, the job generally comes with a title that an employer believes to be descriptive of the role and reflective of the duties and responsibilities of the position. In many cases, an employer's assignment of a job title to a particular role is done without a great deal of detailed thought. 

It is important to remember, however, that occupational health and safety legislation in each Canadian jurisdiction sets out the obligations of various individual parties regarding health and safety in the workplace. While the specifics of the legislation vary somewhat as between jurisdictions, generally speaking, "supervisors", "employers", "constructors" and other groups each have defined obligations under health and safety legislation that are triggered by virtue of their particular role in relation to the workplace. Breaches of these obligations can lead to administrative orders or penalties, or, in more serious cases, prosecution by way of regulatory charges. When a charge is laid that mischaracterizes the role of the individual or organization, the individual or organization may have a complete defence to the charge. As a result, it is important for individuals and organizations to understand how they are properly characterized for the purposes of OHS legislation.  

Definitions and Duties

One area in which there is often a confusing interaction between workplace job titles and OHS roles is the area of construction. Most construction contracts assign titles to the parties involved in a construction project without regard to the categories set out under applicable OHS legislation. For example, a construction contract may identify the company in charge of a construction project as a 'constructor manager' or "general contractor", despite the fact that these titles do not correspond to any categories found in applicable OHS legislation. Instead, the legislation might use entirely different terms, such as "constructor" or "prime contractor". It can therefore be challenging to determine if an individual or company has been properly characterized by the regulator in a charge. When this issue arises, a detailed analysis must be undertaken of the categories in the applicable OHS legislation and the corresponding obligations assigned to each category. Care must be taken when considering whether the individual or organization wants to accept the implications of a certain legislative category, particularly in reference to how the party's duties have been set out in the construction contract and what the party's actual role has been in the construction project.    

Mischaracterization in a Prosecution

When a party is facing a regulatory, quasi-criminal charge under health and safety legislation, it is important to remember that the Crown bears the burden of proof to establish all essential elements of the offence beyond a reasonable doubt. One of the elements of the offence is the characterization of the party charged – i.e. the prosecution must prove beyond a reasonable doubt that the party charged is, in fact, an "employer", "supervisor", "constructor" (or other appropriate category) for the purposes of the applicable health and safety legislation. 

Any party who has been charged with an offence should not simply assume that the prosecution has made the correct determination as to its categorization. The categorization chosen by the prosecution should, in each case, be carefully evaluated by the party facing the charge. If there is a viable argument that the prosecution has not charged the party correctly in this respect, it is open to the charged party to argue that the prosecution cannot meet its burden of proof to the standard of "beyond a reasonable doubt" and, thus, that the party should be acquitted of the charge(s).

A recent decision from Nova Scotia highlights this point.  In R. v. McCarthy's Roofing Limited (PDF) a trial judge was tasked with evaluating four charges against a roofing company after an outrigger beam fell from the penthouse level of a building and seriously injured a worker below. Two of the charges against the company were stated to be against the company in its capacity as an "employer", while the other two charges were laid against the company in its capacity as a "constructor". Following the trial, the judge acquitted the company of the two charges in which the company was categorized as a "constructor", on the basis that the company did not have sufficient authority beyond the "workplace" to trigger the obligations of a "constructor" under applicable legislation.

Take Away

As a result, it is important for individuals and organizations to not only understand their job titles in the normal course of employment, but also to understand how their role is properly characterized for the purposes of health and safety legislation. This understanding will not only give clarity to a party about its obligations and duties under the legislation, it will also be critical in the event that the party is ever charged under the legislation in a way that it believes to be incorrect.  

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