Skip to main content
This website uses cookies. By continuing to use this website you are agreeing to our use of cookies as described in our privacy policy.
The HR Space

Understanding OHS General Duty Clauses

Fasken
Reading Time 4 minute read
Subscribe

Labour, Employment and Human Rights Bulletin | HR Space

One of the challenging provisions in every Canadian occupational health and safety statute is the "general duty clause". This is a provision placing duties on employers, and sometimes supervisors, as in Ontario, to take "every precaution reasonable in the circumstances for the protection of a worker".  

The general duty clause has its origins in the American federal occupational health and safety statute, where it is widely used. In Canada, OHS regulators have been very slow to communicate to employers and other workplace stakeholders their particular expectations regarding what general duty clauses mean. 

Early prosecutions of employers for alleged violations of a general duty clause seemed to create a reverse onus on employers to prove that since there was an accident they were not in breach of the general duty clause. In other words, prosecutors argued that evidence of an accident was proof of a violation of the general duty clause.

In 2018, the Alberta Court of Appeal corrected this legal error in the Precision Diversified Oil Field Service Corp.[1] case. In addition to the Alberta Court of Appeal, appellate courts in Saskatchewan, Newfoundland, and Ontario have done so.[2] The general duty clause charges must be particularized, and the particulars must place a reasonable expectation on the employer in the particular circumstances of the case; then it must be proven by the Crown beyond a reasonable doubt.

This brings us to the Quinton Steel decision of the Court of Appeal for Ontario. In that case, a worker fell from a temporary work platform at a height of six feet six inches above the ground at an industrial establishment. The regulations did not require a worker to have a fall arrest system or guardrails at that height above the ground.

At trial, and at the first level of appeal, Quinton Steel was successful in arguing that the general duty clause in the Ontario OHS statute cannot create a higher standard for safety than that of the applicable Industrial Regulations. However, the Court of Appeal for Ontario held that the general duty clause could require safety precautions to be more stringent than found in the applicable regulations. The Court of Appeal held that this was a matter of interpretation of the "circumstances of the case", and that each case must be assessed for what is a reasonable precaution in any particular workplace.[3]

The re-trial of the Quinton Steel prosecution resulted in a 33-page comprehensive, fact specific and well-reasoned judgment.  The learned Justice of the Peace held:

"The Crown was unable to point to an objectively reasonable standard to establish whether a guardrail was reasonable… Although Quinton Steel was an industrial establishment, they had adopted the more prescriptive Construction Project Regulations that specifically address temporary structures. The Quinton Steel policy required that a guardrail be installed on a temporary platform regardless of circumstances at a height of eight feet or more. That policy was known to the Ministry of Labour both before and after the June 7, 2012 incident. The Ministry of Labour also relied on that standard to provide advice to another type of industrial establishment for temporary platforms… The onus was on the Crown to prove the reasonableness 'in the circumstances'… I am unable to find that Quinton Steel failed to take the reasonable precaution necessary in the circumstances by failing to install a guardrail."[4]

The takeaway from this legal review and commentary of general duty clauses includes the following three critical points:

• general duty clauses have now been interpreted to require employers to assess the circumstances of the workplace when doing a workplace risk assessment;

• even if an employer's safety policy complies with the applicable regulation, it may not be in legal compliance if the circumstances of the workplace require a higher standard of safety to protect workers;

• all employers should conduct a workplace risk assessment in the workplace to satisfy the obligation under a general duty clause.


 

[1]       R. v. Precision Diversified Oil Field Service Corp., 2018 ABCA 273.

[2]       R. v. Viterra, 2017; R. v. St. John (City), 2017 NLCA71; R. v. Brampton Brick Ltd. [2004] OJ No. 3025. 

[3]       R. v. Quinton Steel, 2017 ONCA 1006, at para. 29.

[4]       The Queen v. Quinton Steel, unreported decision, May 8, 2019, at para. 168-171.

 

    Sign up for updates from this team

    Receive email updates from our team

    Subscribe