BCRSP Law and Ethics Study Guide - 2016 Edition

Canadian
Registered
Safety
Professional
Law and Ethics

Study Guide
Board of Canadian Registered Safety Professionals

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Last Revision: 2016

BCRSP Guide to Registration © Page 1
Law and Ethics (LE)
Law and Ethics (LE)

This domain was developed by Dr. Peter Strahlendorf, Associate Professor, School of Occupational and
Public Health, Ryerson University, Toronto, ON.
Originally Developed: 2001 Last Revision Completed: 2016
Table of Contents
Suggested Reading..................................................................................................................................... 2
Domain ......................................................................................................................................................... 2
Overlap and Relations with other Domains.............................................................................................. 2
Learning Objectives .................................................................................................................................... 3
Learning Objectives for the Competencies .............................................................................................. 4
Competency LE1: Principles of Law.......................................................................................................... 4
Competency LE2: Introduction to OHS Law.............................................................................................. 9
Competency LE3: Environmental Law .................................................................................................... 12
Competency LE4: Duties of the Workplace Parties ................................................................................ 13
Competency LE5: Ethical Theories ......................................................................................................... 14
Competency LE6: Workers’ Rights ......................................................................................................... 15
Competency LE7: The Duties and Powers of Enforcement Agencies .................................................... 17
Competency LE8: The Obligations of a CRSP........................................................................................ 18
Competency LE9: The CRSP’s Obligations with Respect to the BCRSP’s Rules of Professional
Conduct (the Code of Ethics) .................................................................................................................. 19
Competency LE10: The Consequences of Professional Errors and Omissions ..................................... 20
Competency LE11: The Role of the CRSP and the Limits of Professional Practice .............................. 20
Study Guide to Law and Ethics ............................................................................................................... 22
Competency LE1: Principles of Law........................................................................................................ 22
Competency LE2: Introduction to OHS Law............................................................................................ 61
Competency LE3: Environmental Law .................................................................................................... 95
Competency LE4: Duties of the Workplace Parties .............................................................................. 103
Competency LE6: Workers’ Rights ....................................................................................................... 120
Competency LE5: Ethical Theories ....................................................................................................... 148
Competency LE7: The Duties and Powers of Enforcement Agencies .................................................. 163
Competency LE8: Obligations of a CRSP ............................................................................................. 181
Competency LE9: The CRSP’s Obligations with Respect to the BCRSP’s Rule of Professional Conduct
(Code of Ethics) ..................................................................................................................................... 195
Competency LE10: The Consequences of Professional Errors and Omissions ................................... 211
Competency LE11: The Role of the CRSP and the Limits of Professional Practice. ........................... 216
Additional Resources ............................................................................................................................. 218
Suggested Reading on Ethics ............................................................................................................... 218
Law and Ethics (LE)
Suggested Reading
Dukelow, D. A., Pocket Dictionary of Canadian Law, 5th ed., Carswell, Toronto, 2011.
This is a relatively inexpensive paperback law dictionary which contains many of the basic legal terms
which the OHS professional ought to be familiar with. An alternate source, and often found in the main
Canadian book store chains, is: S.G. Coughlan, C. Cotter and J. A. Yogis, Canadian Law Dictionary,
Barron’s, New York, 2013. Generally, American law dictionaries are to be avoided as the meanings of key
words often differ and because many important Canadian constitutional terms would be missing entirely.
There are many short articles published in the OHS professional literature in Canada that are excellent
summaries and analyses of OHS legal issues, for example: OHS Canada magazine and Canadian
Occupational Safety (COS) magazine, which both have large circulations across Canada. These articles
are “recommended reading”.
For the ethics Competencies, the U.S. Board of Certified Safety Professionals (BCSP) has granted
permission to the Board of Canadian Registered Safety Professionals to reproduce portions of the
BCSP document, Peter Strahlendorf, “Ethics for Safety Professionals” (2006) in the Law and
Ethics study guide.
Domain
The BCRSP “Examination Blueprint” of 2015 describes nine subject matters, or domains, that the
prospective CRSP should master. The Blueprint is the basis for the study guides which the CRSP
candidate will use to study for the CRSP examination (CRSPEX). Law and Ethics (LE) is one of the nine
domains. The Blueprint lists 11 competencies for Law and Ethics.
An understanding of law and legal systems in general, as well as a detailed understanding of OHS law in
particular, is necessary for the CRSP. The OHS professional provides guidance to the organization and to
individuals regarding interpretation and application of legislation and case law. This must be done,
however, without straying across a line into the practice of law, which is restricted to lawyers (as
discussed in LE11). The CRSP must know when to recommend that the organization or individuals seek
the counsel of a practising lawyer. Many programs that need to be developed in an OHS management
system are driven by specific legal requirements. The CRSP will give advice about compliance with OHS
legislation and should be prepared to discuss the subtleties of due diligence.
The components of what is “OHS law” are many and diverse. The primary sources of OHS law are
statutes, regulations, court cases and decisions of administrative boards and tribunals where the content
is substantively about OHS. But the CRSP should also be aware of many areas of law that affect OHS,
while not being OHS law per se, such as human rights, labour relations, products liability and
environmental law. Law in these other areas may conflict with OHS and sometimes support OHS efforts.
The CRSP must adhere to the BCRSP’s Rules of Professional Conduct (Code of Ethics, or “the Code”). It
is necessary to understand the concepts in the Code, to be able to identify and resolve ethical problems
in OHS, and to understand the consequences of breaching the Code.
Overlap and Relations with other Domains

The Law and Ethics (LE) domain interacts with other domains in the BCRSP syllabus.
There is some overlap with the Occupational Hygiene (OH) domain with respect to chemical exposure
limits. The Ontario regulations are used as a source of examples for chemical exposure limits. There is
Law and Ethics (LE)
little in the Law and Ethics (LE) domain about the numerous standards in Canadian OHS regulations
regarding safety. This is because the regulations are very large and the details differ across provincial
and territorial jurisdictions. The federal regulations might have been used, but it was thought somewhat
unfair to make an in-depth understanding of these regulations part of the BCRSP syllabus given how
relatively few OHS professionals work in the federal sector. The ethics portion of the Law and Ethics (LE)
domain interacts with all the domains of the BCRSP syllabus, as the CRSP will be faced with potential
ethical problems in all areas of OHS. British Columbia does have an ergonomics regulation, but most of
the other Canadian jurisdictions do not. Details in an ergonomics regulation would be better dealt with in
the Ergonomics (ERG) domain. There is an obvious relationship between the Law and Ethics (LE)
domain and the Management Systems (MS) domain. The OHS management system is in large part
evidence of the due diligence of the senior people as well as that of the organization as a whole. The
different programs in a mature OHS system reflect both “regulatory compliance” and the need to go
beyond regulations under general duty clauses. The latter require the organization to develop programs
tailored specifically to an organization’s unique hazards and problems. The trend today is for legislation to
make reference to required “programs”, the development of which will be guided by general standards in
the regulations. The employer’s duties in the Canada Labour Code, Part II contain some good examples.
There are many significant legal issues associated with the Health and Wellness (HW) domain,
specifically regarding substance abuse. The legal background to the Fire Prevention and Protection
(FPP) domain is not covered in this Law and Ethics (LE) domain to any great extent. The problem, of
course, is that Fire Codes are in provincial jurisdiction (except for the adoption of the National Fire Code
into the Canada Labour Code, Part II regulations) and differ (although not greatly) across Canada. The
2015 Blueprint removed Environmental Practices (EP) as a separate domain. However, some aspects of
the environment domain were moved to the Law and Ethics (LE) domain as the LE3 competency.
Learning Objectives
The following are learning objectives for the Law and Ethics (LE) domain as a whole. More specific
objectives are set out for each of the 11 competencies LE1 to LE11.
1. Understand basic legal terminology: categories of law, principles, concepts… and be able to give
examples in the area of OHS law.
2. Be able to provide a brief overview of the historical origins of workers’ compensation legislation.
3. Set out the basic principles of the operation of a Canadian workers’ compensation system; being
able to identify fundamental and common issues in such systems.
4. Define, describe and explain the nature and functioning of the Internal Responsibility System
(IRS).
5. Outline the individual and employer duties which typically fulfil the IRS in most jurisdictions.
6. Be able to explain to others the meaning of due diligence and how one derives specific actions
from general principles.
7. Give examples of specific activities that would be due diligence depending on position, authority,
knowledge, risk and legal duty.
8. Give examples of how elements (e.g. programs) of an OHS management system derive from
legal requirements; both specific standards and general duty clauses.
9. Describe the proper role of health and safety committees and worker representatives given the
IRS philosophy.
10. Set out the steps involved in a typical work refusal provision, describe the pitfalls, and explain
how work refusals can be avoided in the first place; emphasizing the connection with the IRS.
11. Show how the Right to Know can improve OHS decision-making by participants in the IRS.
12. Be able to explain the elements of a WHMIS program, their origin in law, and their significance for
reducing risk.
13. Be familiar with the trans-Canada non-WHMIS hazardous material labelling and packaging
systems.
14. Be familiar with the main elements of chemical control laws: exposure limits, assessments,
control programs, etc.
Law and Ethics (LE)
15. Describe the proper role of the inspector/officer given the real meaning of the IRS.
16. Set out the typical processes for handling Orders/Directions, including issues surrounding the
appeal of Orders/Directions.
17. Be able to set out regulatory regimes (both federal and provincial) outside of OHS statutes that
affect OHS; e.g. human rights codes, labour relations, public health laws, etc.
18. State the main principle in the law of occupiers’ liability and describe situations in which the
CRSP will be most involved with occupiers’ liability.
19. Describe the elements of the two main causes of action in the law of products liability and be able
to explain the relevance of this area of law to OHS practice.
20. Understand the nature of criminal negligence and how individuals and organizations can avoid
criminal liability.
21. Understand and be able to articulate the principles in the BCRSP’s Rules of Professional Conduct
(the Code of Ethics). Be able to identify examples of ethical problems and outline steps to resolve
such problems.
22. Be aware of the consequences of contravening the Rules of Professional Conduct.
Learning Objectives for the Competencies

The following summarize the objectives for the 11 competencies in the 2015 Examination Blueprint.
Competency LE1: Principles of Law

Law, Justice and the Legal System
A basic understanding of law in general is a necessary foundation for the understanding of OHS law.
Practising OHS professionals may take for granted their understanding of many legal terms that they
have acquired over the years. While there is no room to squeeze in a full course on “the introduction to
law”, the prospective CRSP will be aware of dozens of concepts and terms used within the legal system.
There is often confusion about the types or categories of law since there is much overlap and few distinct
boundaries. It is important for the CRSP to use a phrase such as “quasi-criminal law” or “regulatory law”
to describe OHS statutory law rather than “criminal law” – and to know the implications of these phrases.
It similarly does not reflect well to hear mention of a “lawsuit” when a “prosecution” is what is meant.
Specific learning objectives are:
1. Be able to describe the nature of law, the forms of justice and the elements of the legal system.
2. Be able to identify the entities involved in the legal system and be able to describe their roles: e.g.
 legislatures
 executive (Ministers)
 politicians (MPs, etc.)
 cabinet (Governor in Council, Lieutenant in Council)
 lobby groups
 judges and courts
 bureaucrats, civil service
 government inspectors and officers
 citizens (voters)
 lawyers
 Crown prosecutors
 administrative boards and tribunals
 law reform commissions
3. Describe types of law (e.g. common law, criminal, contract, administrative, constitutional, tort,
etc.).
4. Define key legal concepts that are used in OHS law.
Law and Ethics (LE)
The Constitution and the Charter of Rights

Constitutional law might seem a little abstract for some, but it is the basis for determining whether the
Canada Labour Code, Part II applies to a workplace, or whether the provincial or territorial OHS laws
apply. Workers’ compensation is treated differently than OHS prevention in constitutional law, and so is
environmental protection.
1. Understand key constitutional concepts such as “federal state”, “division of powers”, etc.
2. Identify workplaces that are under federal jurisdiction (and the Canada Labour Code, Part II), and,
by implication, be able to state which workplaces are under provincial or territorial jurisdiction..
3. Be able to determine constitutional jurisdiction for non-OHS subjects that are relevant to OHS
practice, such as environmental protection, criminal law, public health, etc.
4. Appreciate that the “compensation” aspects of OHS law are different, constitutionally, from the
“prevention” aspects.
5. Identify the rights and freedoms in the Canadian Charter of Rights and Freedoms that are most
relevant to OHS practice, particularly with regard to equality rights and the powers of government
agents.
Statutory Law and Interpretation

CRSPs will be reading legislation – Acts and regulations – so they should have reasonably good skills of
statutory interpretation (there are rules to statutory interpretation!). A similar skill interpreting the case law
(cases decided by Judges) should also be developed. An ability to properly cite Acts, regulations and
cases is an obvious requirement.
1. Show how Acts and regulations are developed and passed, and be able to give examples of the
legal status of guidelines.
2. Be able to set out the characteristics of statutes, regulations, by-laws and guidelines.
3. Demonstrate an understanding of the basic rules of statutory interpretation.
4. Explain the significance of OHS law as “public welfare” legislation when it comes to interpretation
of an OHS Act.
The Common Law

The CRSP should possess a basic understanding of the principles of common law. By “common law” we
mean the law that is found in the cases decided by Judges in court. The law of torts and the law of
contracts are two large areas of the common law.
We have no-fault workers’ compensation systems in Canada today because of the failure of the common
law a century or so ago to adapt quickly to an industrialized economy. The CRSP must have an historical
perspective on the regulatory regimes he or she is operating under.
The common law did not “die” when compensation systems were developed early in the 20th century; it
still exists for people not covered by workers’ compensation laws, and it certainly still exists for a wide
variety of potential lawsuits arising out of modern workplaces. While most workers cannot sue most
employers or co-workers, there’s nothing holding back non-covered visitors from suing (occupiers’
liability), or the neighbours, if there’s an environmental aspect to an accident. Can the government
Law and Ethics (LE)
inspector or the Crown be sued? What about the OHS consultant? A manufacturer of a product sold into
the workplace (product liability)?
An understanding of the common law is necessary for an understanding of the common law actions
involved in environmental law, the law of occupiers’ liability, and the law of products liability.

1. Explain the limited circumstances where civil liability for OHS usually exists.
2. Show how on-going concerns for due diligence under regulatory regimes should also serve to
drive down the risk of civil liability.
3. Describe the difficulties workers and their families had during the 19th century in Canada
obtaining compensation from employers through civil lawsuits.
4. Outline the origins of workers’ compensation legislation and the most basic principles of early
compensation regimes.
Products Liability
The CRSP should possess a basic understanding of products liability law as it relates to OHS.
The CRSP would be interested in products liability primarily in the situation where a product in the
workplace caused an accident or exposure resulting in harm to a worker. In some organizations the
employer may require the CRSP to oversee quality control so that the risk of the CRSP’s own
organization’s products causing harm to others is reduced. As quality principles continue to be integrated
into OHS practice and as OHS management systems are integrated with quality and environmental
management systems, we are likely to see more CRSPs drawn into this function.
The law of products liability is not about a single “cause of action”. It is not a traditional area of law such
as “tort law” or “contract law”. The law of products liability is a hybrid or mixture of several types of law –
contract law, tort law and regulatory law.

1. Be able to recognize situations where a worker can choose between taking workers’
compensation legislation and suing a manufacturer or distributor of a defective product.
2. Be able to identify the grounds on which a manufacturer or distributor can provide a defective
product to the workplace (e.g. poor design, manufacture, or operating instructions).
3. Understand the meaning of implied warranties in Sale of Goods Acts.
4. Be able to distinguish the two main causes of action in the law of products liability and identify the
elements of a tort or contract action.
5. Be able to contribute to quality control systems so as to reduce the probability of producing a
defective product.
6. Be able to inform/educate a worker involved in a products’ liability lawsuit.
Liability Related to Property Ownership

The CRSP should possess a basic understanding of liability related to property ownership.
There is an area of common law known as the law of “occupiers’ liability”. An occupier of premises has a
duty to people coming onto the premises to do everything reasonable in the circumstances to protect
them and their personal property. In many jurisdictions, the common law has been codified in an
“Occupiers’ Liability Act”. In general, if the OLA doesn’t apply to a particular situation, then the pre-OLA
common law can be used.
Occupiers’ liability is about lawsuits, not prosecutions. It’s an area of “private law”. The entrant who is
harmed can sue the occupant for damages in a civil lawsuit.
Law and Ethics (LE)
The CRSP should understand the law of occupiers’ liability to varying degrees depending on the nature of
the workplace. Any workplace will have some entrants who are not workers and it is hard to imagine a
situation where the CRSP would never need to know about the law of occupiers’ liability. In some
workplaces, such as the retail sector, hospitals and schools, issues concerning occupiers’ liability become
very important.
The CRSP will often be in the position of developing a “Visitor Safety Program” to protect visitors. The
employer, as the “occupant”, would have to have a due diligence defence to a lawsuit based on the
employer’s negligence with respect to non-worker visitors to the workplace.

1. Assess the nature of the workplace in terms of risk to entrants who are not workers (or not
covered by workers’ compensation legislation).
2. Be able to plan, develop, implement and audit a “Visitor Safety Program”.
3. Be able to apply OHS techniques (inspections, housekeeping, security access control), to the
issues raised by occupiers’ liability.
4. Be able to apply due diligence reasoning to the need for reasonable precautions to protect
entrants.
5. Be able to determine appropriate warnings to prospective entrants regarding hazards and risk.
6. Be able to advise a worker who may be in the position of choosing either workers’ compensation
benefits or suing a “third party” occupier.
7. Be familiar with the nature and function of liability insurance for harm to entrants.
8. Be able to interpret and apply terms typically found in Occupiers’ Liability Acts such as “occupier”
and “premises”.
9. Be able to inform/educate the employer about issues such as liability towards trespassers, those
with criminal intent, and entrants onto rural and recreational lands.
10. Be able to inform/educate the employer’s workers about potential liability for trespass when they
visit the property of others.
11. Be able to assess the risks trespassers pose to the CRSP’s workplace and workers.
12. Be able to inform/educate the employer as to the proper means of warning away potential
trespassers.
13. Be able to inform/educate the employer as to the proper means of removing trespassers safety
from the employer’s premises.
Privacy Law
The CRSP should have an understanding of the requirements of privacy legislation in the practice of
OHS. Of key importance is to be able to recognize a situation in which privacy issues may be significant.
As for other areas of law, privacy law is found in both federal and provincial/territorial legislation. It is
sometimes difficult to determine which jurisdiction is applicable.
1. Be able to identify situations where issues concerning privacy may arise.

2. Be able to identify the relevant privacy legislation.
3. Be able to educate others in the workplace about the importance and nature of required practices
to protect confidential information.
4. Understand the particular importance of personal medical records.
5. Be aware of the implications of rules concerning confidential business information on OHS
practice.
6. Be able to educate others in the workplace about specific confidentiality provisions in OHS
legislation.
Subsidiary Provincial Legislation
Law and Ethics (LE)
It is difficult to put boundaries around this subtopic. There are many Acts and regulations that affect OHS
in either a positive way or a negative way.
Public health. The CRSP will understand the overlap between OHS and public health. Public Health
inspectors usually have jurisdiction under a “Public Health Act” over issues such as indoor air quality (e.g.
mould) where non-workers are present in addition to workers. Public Health inspectors are often
responsible for inspecting work camps in remote areas. Their concern is for food safety, water quality and
sanitary facilities that affect the residential work force. Certain kinds of accidents involving the release of
hazardous materials will draw the attention of the local Public Health inspector (who has greater powers
than some may think). Depending on the jurisdiction, anti-smoking legislation aimed at the workplace may
be enforced by public health officials. Pesticide classification is under federal jurisdiction – the Pest
Control Products Act – but the handling of pesticides is in provincial jurisdiction. Such provincial
legislation may focus on environmental protection, public health or workplace health and safety (or any
combination).
Human Rights. There are potentially negative interactions between human rights legislation and OHS, as
the former may require the employer to permit people to be in the workplace who pose a risk to
themselves or others.
Labour Relations. The interaction between OHS and labour relations might be prefaced with a comment
that OHS should not be thought of as a subset of labour relations as this will make the functioning of the
IRS difficult if not impossible. The grievance of discipline for safety reasons illustrates the link between
OHS and a labour relations perspective. Labour arbitrators have in mind interests other than the
employer’s or the supervisor’s due diligence in these types of cases. In some jurisdictions the appeal of
inspectors’ orders goes to a labour relations board or tribunal. There may be elements of a collective
agreement that go beyond the OHS legislation in terms of risk reduction, and in this sense there can be a
positive interaction between OHS and labour relations. The CRSP should be familiar with the general
principles of, and processes in, labour law.
There are other areas of provincial regulation that are significant such as coroners’ legislation (sometimes
called fatal enquiries legislation) where workplace accidents may be investigated in a public forum in a
“no fault”. Public safety legislation covering gasoline handling, propane safety, elevators, boilers etc. is
also relevant to OHS. Provinces have jurisdiction over occupations and trades. OHS may be a required
part of trades training under trades legislation. As mentioned before, the details of provincial or territorial
legislation cannot be part of the CRSP syllabus.
Subsidiary Federal Legislation

Some elements of subsidiary federal legislation are covered in the discussion on WHMIS. Other federal
legislation involving the environment is covered under the environmental law competency (LE4).
Workers’ Compensation. While there is no separate federal worker’s compensation regime (not
counting the pension system for the RCMP and the military), the CRSP should be generally aware of the
main principles in the federal Government Employees Compensation Act.
Human Rights. As well, the federal human rights legislation is relevant, for the same reasons as the
provincial/territorial human rights codes are, as mentioned previously. The same workplaces that are
under the Canada Labour Code, Part II are also under the Canadian Human Rights Act, and not under a
provincial human rights statute.
Labour Relations. Labour relations in the federal sector follows the same jurisdiction as the Canada
Labour Code, Part II. The issues are similar to those for labour relations in provincial jurisdiction.
Workplace Smoking. Federal workplaces are under the Non-Smokers’ Health Act, which is not as
stringent as many provincial non-smoking statutes.
Law and Ethics (LE)
1. Give examples of subsidiary regulatory regimes that can conflict with OHS regimes, and those
regulatory regimes that can further the OHS agenda collaterally (ie, they promote OHS, but are
not primary OHS prevention legislation).
2. Describe how employment standards legislation can have an OHS aspect.
3. Be able to describe the labour relations processes and concepts that can have a bearing on
OHS.
4. In very general terms, outline the purposes and processes involved with coroners inquests, and
how they relate to OHS.
5. Provide an overview of the nature of human rights legislation, and be able to identify areas of
interaction with OHS.
6. Give examples of scenarios where public health legislation and public health officials might be
involved with events having an OHS aspect.
7. Show how provincial/territorial pesticides legislation may have an OHS connection.
8. Describe the relevance of provincial/territorial trades legislation for OHS (apprenticeship training).
9. Be able to identify areas of public safety regulation where there is also an OHS concern, such as
the regulation of elevating devices, flammables (gasoline, propane), pressure vessels, fire codes,
electrical codes, building codes, etc.
10. Provide an overview of the nature of federal human rights legislation, and be able to identify
areas of interaction with OHS.
11. Describe the handling of workers’ compensation in federally regulated workplaces, and be able to
describe the main features of the federal Government Employees Compensation Act.
12. Identify scenarios where the federal environmental legislation would apply, and be able to provide
a broad overview of the features of such legislation.
13. Be able to use correctly citations of federal Acts and regulations.
Competency LE2: Introduction to OHS Law

The CRSP should possess a basic understanding of OHS law in Canada. Some of the “big ideas” in OHS
law are discussed here. The competencies LE4, LE6 and LE7 deal with specific areas of OHS law. The
CRSP should be adept at reading OHS legislation, and should appreciate the significance of definitions in
an OHS statute. Much of our concern in OHS law is about “prevention” but the CRSP will have a very
good grasp of workers’ compensation principles. The “big ideas” include the Internal Responsibility
System, due diligence, deterrence, and the difference in purpose between regulatory law and criminal
law. Workers’ compensation is covered here, but only in terms of basic concepts and issues.

1. Appreciate that law is only one motivation among others for efforts to reduce risk in the
workplace.
2. Understand the scope of the losses that OHS legislation aims to prevent.
3. Be able to distinguish the two broad purposes of OHS law: compensation and prevention, with
some examples of how they are addressed by different regulatory regimes.
4. Be familiar with the special role that definitions play in OHS statutes.
5. Give examples of kinds of workplaces that are problematic in terms of OHS prevention legislation
coverage.
6. Discuss the subtleties of the legal definitions of the workplace parties, and their impact on the
scope of the OHS management system.
The Internal Responsibility System
There is a fundamental philosophy which is the basis for most OHS prevention legislation in Canada ...
the Internal Responsibility System (IRS). The idea has been around for a long time, but has been much
misunderstood. The CRSP must have a deep understanding of the subtleties of the IRS – its structure
Law and Ethics (LE)
and function. The CRSP should be able to articulate the IRS in personal terms to every individual at all
levels of the organization. The IRS is a very useful concept as it maps onto due diligence, the legal duties
and the elements of the OHS management system. It is the framework that ties much of the subject of
OHS law together.

1. Articulate a clear description of the Internal Responsibility System.
2. Describe the roles of each category of person (worker, supervisor, etc.) with direct responsibility
within the IRS.
3. Show the basis of the IRS in accident theory.
4. Show how an exemplary IRS should function to routinely address problems and drive down risk.
5. Identify and explain the wrong models of the IRS, showing how others could be convinced of their
weaknesses.
6. Describe the role of the OHS professional given the true meaning of the IRS.
7. Be able to set out a general plan of action for promoting, establishing and monitoring the IRS.
8. Show how an understanding of the IRS model can assist with the interpretation of a Canadian
OHS Act.
9. Be able to describe the IRS definition in the Nova Scotia OHS legislation.
10. Be able to evaluate an OHS Act in terms of the degree to which it promotes the IRS.
The Concept of Due Diligence

A subtle and complex set of ideas important to the CRSP is “due diligence”, which can be either a legal
defence in a prosecution or it can be a general duty in an OHS statute. Due diligence can be described as
“taking every precaution reasonable in the circumstances to protect a worker”. There are many variations
in descriptions.
As a defence, if the defendant can prove due diligence, there will be an acquittal. As a general duty, due
diligence is very powerful because it covers risks not covered by the regulations. It is open ended. It
requires an on-going assessment of hazards in the workplace.
General duty clauses in OHS legislation are often under-appreciated. Their purpose is to address the
“knowledge problem” that regulators have when drafting regulations. Regulations cannot cover
everything. General duties cover what regulations cannot cover. They impose a heavy burden on
individuals who are covered by them – they impose a personal duty to engage in continuous risk
assessment.
1. Understand the origin of due diligence in the common law of negligence.

2. Appreciate the importance of due diligence as a general duty as well as a defence to a specific
duty (usually a regulation-dependent duty).
3. Show how due diligence can be stated in many different ways.
4. Understand how due diligence requires risk assessment.
5. Understand how due diligence varies considerably depending on the degree of authority and
control a person has.
6. Describe how the IRS and due diligence are intimately connected.
7. Understand the purpose of general duty clauses.
8. Be able to identify a general duty clause in legislation.
9. Appreciate the significance of individual general duty clauses in driving the IRS.
10. Understand the use of “authoritative standards” used in prosecuting a general duty clause
The Concept of Deterrence

One of the main purposes of regulatory law (such as OHS law) is deterrence – motivating people to live
up to a higher (reasonable) standard of behaviour than they otherwise might. A government
Law and Ethics (LE)
inspector/officer should consider what the minimum enforcement activity is necessary to motivate a
person – advice, ticket, order, a prosecution (fine, jail). Similarly, a judge, upon sentencing, should
consider what the minimum penalty should be in order to deter the defendant.
1. Understand how the purposes of OHS legislation differ from the purposes of criminal law.
2. Describe the model of “progressive enforcement”.
3. Appreciate the decision-making of a government inspector/officer with respect to deterrence.
4. Understanding how judges apply the concept of deterrence when sentencing.
5. Describe the difference between “specific deterrence” and “general deterrence”.
Workers’ Compensation Legislation

The CRSP should possess a basic understanding of the principles of workers’ compensation law.
Workers’ compensation is, constitutionally, a provincial subject matter. Even federally regulated
workplaces have their workers’ compensation handled by the provincial jurisdiction the worker was
working in. Some CRSPs are personally responsible for managing the workers’ compensation program
for their organization. Increasingly, workers’ compensation should be integrated into the OHS system,
rather than be treated as an isolated set of activities. Increasingly, workers’ compensation regulators are
considering the preventative functions of workers’ compensation. CRSPs must have a basic
understanding of how compensation systems work.
Since the details of workers’ compensation systems may differ from one provincial/territorial jurisdiction to
another, it is difficult to be specific about workers’ compensation in the BCRSP syllabus. Nevertheless,
there is much similarity between provincial compensation regimes.

1. Be familiar with typical definitions associated with compensation regimes, e.g. “accident”, “arising
out of and in the course of employment”, etc.
2. Discuss the nature of “administrative law” regimes using workers’ compensation boards and
tribunals as examples.
3. Explain the nature and significance of “no fault” compensation.
4. Be able to identify “finality clauses” and “privative clauses” in administrative regimes and explain
their significance.
5. Be able to outline the difficulties of compensating for occupational disease, and how these
difficulties are usually addressed.
6. Be able to identify and discuss issues concerning medical records, proof, consent, confidentiality,
medical exams, etc. in compensation regimes.
7. State what problems “return to work” and “modified work” initiatives are aimed at addressing.
8. Describe the scope of health care usually associated with workers’ compensation.
9. Explain the nature of “collective liability” of employers in workers’ compensation regimes, and
how this gives rise to problems with motivation to prevent accidents.
10. Describe the nature of “third party liability” lawsuits and the principle of “subrogation”.
11. Outline the general categories of workers’ compensation benefits for both workers and their
families.
12. Be able to perform basic calculations for compensation benefits.
13. Be able to describe the basic and necessary obligations of employers and workers under a
compensation regime (e.g. to register, keep records, co-operate, provide notice of accidents, etc.)
14. Describe decision-making processes in compensation regimes, and the necessity of an appeal
procedure.
15. Be able to compare the quasi-judicial powers of workers’ compensation appeal tribunals and the
powers of judges.
16. Explain the nature of the potential “unfunded liability” of compensation regimes and the larger
economic impact of such liabilities.
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17. Identify categories of potential fraud under compensation regimes and understand related
enforcement issues.
18. Understand how risk in different sectors of the economy is the basis for developing assessments
for employers.
19. Describe initiatives for using compensation regimes for prevention purposes.
Criminal Law and OHS

The Criminal Code of Canada contains a number of criminal offences that may be relevant to OHS. The
most important of these offences is criminal negligence. The CRSP will be aware of what is required for a
conviction involving criminal negligence.

1. Distinguish criminal negligence from negligent conduct subject to regulatory regimes and be able
to describe the circumstances under which a person could commit a criminal offence relating to
OHS.
2. Be able to set out the manner in which a corporation can be liable for a criminal offence, when a
corporation does not have a “mind” which can “intend” anything.
3. Explain how reactive due diligence ensures that criminal negligence does not arise.
Competency LE3: Environmental Law

The CRSP should be able to demonstrate an understanding of environmental law, both environmental
lawsuits (common law) and environmental statutes (regulatory law). The elements of common law
“causes of action” (nuisance, trespass, negligence and strict liability) should be well understood. The role
of statutory law in the protection of the environment is very important. Some aspects of statutory
environmental law cover compensation to private individuals (e.g. legislation covering liability for toxic
chemical spills) but for the most part the purpose of statutory environment law is protection of the
environment, not compensation for harm to the environment.
There are two main reasons why the CRSP is interested in environmental law. The primary purpose of
OHS law is the protection of human life and health from hazards associated with work. However, the
CRSP is interested in incidents which do not cause harm to workers but cause other losses: property
damage events, production interruptions, fires, harm to members of the public and environmental
releases. This is because such events could, in slightly different circumstances, have harmed workers.
This is one of the principles of “loss control”. An incident that causes a rupture, spill, explosion or fire
which in turn allows hazardous material to escape into the natural environment could, in almost all cases,
have caused an occupational fatality or injury/health effect.
Second, the CRSP may be given a broad job description (risk manager, OHS and Environment
Coordinator) out of convenience (the employer only wants to hire one person). Indeed, a large proportion
of CRSPs, if not a majority, are responsible to some degree for the environmental management concerns
of their employers. Unlike OHS law, however, where most lawsuits are prohibited, the CRSP’s
environmental concerns are about both environmental regulatory law and environmental lawsuits based
in the common law.

1. Describe the scenarios where a CRSP will be involved with environmental law.
2. Explain the similarities between OHS law and environmental law, and the differences.
3. Describe the elements of the environmental cause of action called the “rule in Rylands and
Fletcher”, or “strict liability”.
4. Understand the nature of the legal defences such as “Act of God” in environmental lawsuits.
5. Describe the elements of “trespass” as an environmental cause of action.
6. Describe the elements of “private nuisance” as an environmental cause of action.
7. Describe the elements of “negligence” as an environmental cause of action.
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8. Describe the elements of “riparian rights” as an environmental cause of action.

9. Understand what is meant by the “environment” being a “shared subject matter” constitutionally,
and the significance of the “paramountcy doctrine”.
10. Be able to identify the main federal environmental statutes, their purposes and their scope of
application.
11. Be able to educate others in the workplace about the more significant duties in federal
environmental statutes and what would amount to due diligence in the event of a prosecution.
Competency LE4: Duties of the Workplace Parties

The CRSP should be able to demonstrate an understanding of the duties of the workplace parties in all
applicable jurisdictions. OHS legislation is different than many other types of regulatory law in that the
number and types of persons who have specific duties is relatively great. This is because of the IRS
philosophy discussed in LE2. OHS statutes could be designed so that there are duties only for the
employer. Instead, OHS legislation opens up the organization and assigns duties to people at various
levels of authority in the organization. Individuals in the workplace need to know what their personal
duties are, and what would count as their personal due diligence. This knowledge is in addition to what
individuals need to know in order to ensure that the employer’s duties are fulfilled. Because workplaces
and work are so diverse, OHS legislation must also take into account different types of employers
(constructors, contractors, etc.) and to a lesser extent, entities such as the owners of the workplace
premises and suppliers of goods and materials to the workplace. It is not always easy to identify who the
workplace parties are in a particular jurisdiction.
The duties of workplace parties will differ across Canadian jurisdictions. Yet there are unifying concepts.
The CRSP should be able to pick up the OHS legislation from any Canadian jurisdiction and make sense
of it in terms of the IRS, management systems, due diligence, regulation dependency, general duties, and
so on. Statutory interpretation is an important skill for the OHS professional. The duties in the Canada
Labour Code, Part II can be taken as examples for the purposes of the BCRSP syllabus. They should be
supplemented with examples from other jurisdictions, but the CRSP candidate should expect to be asked
questions based on the Canada Labour Code, Part II.

1. Be able to identify the relevant workplace parties covered by an OHS Act.
2. Understand the difference between workplace parties with direct responsibilities and those with
contributive or indirect responsibilities.
3. Be able to distinguish between types of duties (general, regulation independent and regulation
dependent) and their purposes.
4. Be able to set out the main duties of employers, workers, supervisors and directors and officers
and why they vary in their breadth and focus.
5. Show how the duties of the workplace parties interlock and overlap.
6. Discuss how due diligence varies with the specific duties.
7. Give examples of programs and procedures that would fill specific legal duties.
8. Explain the pitfalls of setting out procedures and programs on paper that are not actually fulfilled
in practice.
9. Show how the duty to report has an important function in driving the IRS.
10. Show the connection between directors and officers duties and the OHS management system.
11. Be able to break down statutory duties in OHS legislation into clear statements of express or
implied action.
12. Discuss the purpose of, and standard set by, the general duty clauses (duty to be duly diligent)
and explain their implication for the OHS management system.
13. Explain the OHS management system as an answer to the employer's "policy and program" duty.
14. Describe the OHS management system as a means of ensuring the due diligence of all parties in
the workplace.
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15. Show the connections between the IRS and the organizational arrangements component of the
OHS management system.
Hazardous Materials
As a subtopic of the duties of the workplace parties, it is worth focussing on duties related to the control of
hazardous materials in the workplace. While there are many important categories of hazards that may be
found in workplaces, it is fair to say that hazardous materials tend to be subject to greater emphasis in the
regulations than other categories. Issues relating to WHMIS/GHS will be discussed under the worker’s
“right to know”. There is an overlap between this subdomain and the Occupational Hygiene (OH) domain
in the BCRSP Blueprint. The focus here is on the legal aspects of exposure limits and other related
chemical control measures.
The CRSP should be conversant with the different ways that guidelines published by authoritative bodies
(government or otherwise) can have legal implications. In many Canadian jurisdictions the ACGIH TLVs
are adopted into the OHS legislation. In other jurisdictions lists similar to the ACGIH TLV lists are
incorporated into regulations. The CRSP will be familiar with the problems and caveats associated with
establishing exposure limits.
Sometimes chemical regulations provide considerable guidance as to what should be done to keep
exposures low. In other regimes the exposure limit is a bald “performance standard”. In either case, the
CRSP will understand how to develop the programs necessary to keep concentration levels low as a
matter of due diligence.

1. Be able to distinguish between the purposes of WHMIS/GHS and the purposes of regulations
aimed at reducing exposure to airborne contaminants.
2. Identify the problems posed by “new chemicals” in regulatory regimes.
3. Be able to explain the nature of ACGIH and the how the ACGIH TLVs are intended to be used.
4. Be able to calculate various exposure values (e.g. 8 hour TWA exposure).
5. Explain why some workplaces (e.g. construction) pose problems for chemical regulation.
6. Outline the general control measures that are usually required to bring concentrations below
exposure limits.
7. Show how chemical assessments and control programs can be made a legal requirement.
8. Show how carcinogens are often a special case in chemical regulation.
Competency LE5: Ethical Theories

The CRSP should possess a basic understanding of ethical theories. As set out in LE9, the CRSP will
have great familiarity with the BCRSP’s Rules of Professional Conduct (Code of Ethics) and will
understand the role which such codes play in protecting various categories of people and interests. The
legal and non-legal repercussions of a breach of a code of ethics should be well understood. But codes of
ethics take one only so far in understanding professional ethics. On their own they do not tell one how to
think through an ethical problem. They identify in broad terms the values and principles that are
important, but not how they are used in analysis and decision-making. A professional code of ethics,
without an ability to identify and solve ethical problems, is of little use.
First, we come to an understanding of what “professional ethics” covers as opposed to other areas of
ethics. There are historically several important schools of thought in ethics which the CRSP should be
familiar with. We discuss how relevant ethical problems can be identified. How does one then apply
theory to practice when deciding what to do (or not do)?

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1. Understand the meaning of “profession” and the degree to which a CRSP can be understood to
be a “professional”.
2. Distinguish between “full professions” and “quasi-professions” in terms of the consequences for a
breach of a professional code of ethics.
3. Describe the subject matter of “professional ethics”.
4. Explain the differences between law and ethics and the connections between them.
5. Be able to explain why an ability to solve ethical problems rather than simply following rules is a
necessary skill for a professional.
6. Describe the main traditions or perspectives on ethics (natural law, Kantianism, utilitarianism),
with examples of their application to professional ethics.
7. Be able to recognize a moral problem, an ethical dilemma, and situations where a “hard choice”
may not be an ethical dilemma at all (even though it may appear to be).
8. Be able to describe the process of moral thinking; the use of a moral framework.
Competency LE6: Workers’ Rights

The CRSP should possess an understanding of the three primary workers’ rights: the right to know about
workplace hazards, the right to participate in OHS, and the right to refuse unsafe work. For the most part,
these rights are represented in OHS legislation as the corresponding duties of others to ensure those
rights are respected. The three rights are part of the IRS, although secondary to the core duties of the
employer and individuals. It is important to understand the purpose of these rights and the ways in which
they can help to reduce risk in the workplace.
The Right to Know

The CRSP will understand that the Right to Know is one of the “three rights” workers have under the IRS.
The Right to Know is usually expressed as the “duty to tell” in OHS legislation. The CRSP will also know
that the state of “knowing” is not an end in itself. The improved understanding of workplace hazards and
their control will facilitate decision-making by all workplace parties as they go about their functions within
the IRS. There is a direct Right to Know of individuals. There is also a representative Right to Know in
that worker representatives and health and safety committees are also entitled to information about
hazards and controls.
Many aspects of the duties to tell are best analysed along with the other duties. For many people, the
Right to Know is epitomized by WHMIS/GHS, which is really just one aspect of the fulfilment of the Right
to Know. In this subdomain the focus is on WHMIS/GHS.
The CRSP should be fully familiar with all aspects of WHMIS/GHS. Often the OHS professional does
WHMIS training, if only “train the trainer” programs. But usually the CRSP who is coordinating an
organization’s OHS efforts will be responsible for developing and implementing a WHMIS program. Such
a program ensures that there is on-going tracking of hazardous materials (inventory, floor plan), regular
inspections to ensure labelling and Safety Data Sheet (SDS) availability, a matching of workers with
chemicals, assessments of WHMIS/GHS training needs, delivery and regular review of training, and so
on.
The CRSP will also be familiar with the non-WHMIS labelling systems, and be able to integrate a concern
for non-WHMIS products into a complete hazardous material handling program.

1. Describe the purposes of WHMIS/GHS.
2. Give examples from OHS legislation of the “right to know”/ “duty to tell” other than in a
WHMIS/GHS context.
3. Outline the main features of the federal WHMIS/GHS legislation.
4. Describe the interrelationships of federal and provincial/territorial WHMIS/GHS legislation.
5. Set out the main features of provincial/territorial WHMIS/GHS legislation.
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6. Be able to list hazardous materials that are not subject to WHMIS/GHS labelling and SDS
requirements.
7. Be able to set out the requirements for a WHMIS/GHS supplier label.
8. Be able to set out the requirements for a WHMIS/GHS SDS.
9. Describe the issues surrounding the development of WHMIS/GHS training programs.
10. Discuss how WHMIS/GHS can be related to “community right to know”.
11. Be able to describe the non-WHMIS labelling regimes (Transportation of Dangerous
Goods(TDGA), consumer products, pesticides, radioactive materials, explosives, food, drugs, and
cosmetics).
The Right to Participate

The CRSP should be able to demonstrate an understanding of the roles and functions of health and
safety committees and representatives.
Some CRSPs will sit on committees; others will be advisors to committees. Almost all will interact in some
way with worker representatives, management representatives and the recommendations of committees.
The CRSP will be familiar with the theoretical rationale for representatives and committees. The CRSP
will also be familiar with typical arrays of powers and duties of representatives and committees. The
Canada Labour Code, Part II again can be used as an example, and the CRSP candidate will be
expected to be familiar with the provisions concerning representatives and committees.

1. List and describe the main functions of typical health and safety committees.
2. Show how the worker member and the committee can function as a "back up" for the central core
of the IRS.
3. Describe how the committee exercises "leveraged power" through the External Responsibility
System and through its effect on the employer’s due diligence status.
4. Explain the nature of the worker member's workplace inspections given the primary obligations of
members of the central core of the IRS.
5. Set out the worker member's proper role in liaison with the inspector/officer.
6. Explain how labour relations concepts can undermine the functioning of the health and safety
committee.
7. Show what the worker member should be seeking primarily during the course of a work refusal.
8. Discuss the issues involved with setting up a “policy committee” under the Canada Labour Code,
Part II.
9. Be able to describe the powers of federal representatives, workplace committees and policy
committees.
10. Be able to describe the interactions between the employer and federal representatives, workplace
committees and policy committees.
The Right to Refuse Unsafe Work

The typical CRSP will assist with the handling of unsafe work refusals or will be training and/or advising
those who do handle them. There is a large number of sub-issues surrounding work refusals. A major
concern is how to avoid work refusals in the first place. The proper role of work refusals in light of the IRS
should be understood by the CRSP. When a work refusal occurs, a key question ought to be: “what failed
in the IRS that this work refusal had to occur?”
The work refusal procedures differ across Canadian jurisdictions. They have some common features. The
Canada Labour Code, Part II work refusal procedure will be used as an example. It should be noted that,
as of 2014, the work refusal provisions in the CLC are more complex than in most other jurisdictions.

1. Explain who has the right to refuse, and who has a limited right to refuse.
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2. Show how the right to refuse differs from the duty on the part of workers to report hazards.
3. Describe how a refusal case typically commences.
4. Discuss what might happen if a refusing worker has multiple reasons for refusing (ie. non-health
and safety reasons).
5. Indicate what might happen if the worker is extra-sensitive to the hazard (ie. other workers do not
face a hazard).
6. Explain the function of the worker representative present at the work refusal.
7. Explain what the effect of an inspector's/officer’s decision is at the end of a work refusal process,
and what happens if the worker continues to refuse after the inspector/officer says it's okay to go
back to work.
8. Show how work refusals can be avoided in the first place.
9. Outline the steps in the federal “complaint resolution process”.
Competency LE7: The Duties and Powers of Enforcement Agencies

The CRSP should possess an understanding of the powers of inspectors/officers, the nature of various
types of Orders or Directions, the appeal process and prosecutions.
Sometimes an employer or client realizes the true value of the experienced CRSP when faced with a
difficult Order or Direction from the government agent. (Of course, these days, the government agent is
increasingly likely to be a CRSP him or herself.) The CRSP will understand how to maintain a proper
liaison between the enforcement officer and the organization. The role of the worker representative with
respect to the inspector/officer’s need to “see into” the IRS will be understood.
The Canada Labour Code, Part II provisions concerning federal officers should be familiar to the CRSP
as examples of typical powers of government agents. The process of deciding whether to appeal
Directions will be similar in other Canadian jurisdictions. As of 2014, the term “officer” in the CLC was
replaced by the term “Minister”. The Minister then delegates most activities to an “Official Delegated by
the Minister of Labour” (ODML). Those who were “officers” are now ODMLs. We may use the terms
“Officer” and “ODML” interchangeably.
The CRSP can assist legal counsel in preparation for a defence if the organization (or an individual) is
charged under OHS legislation. The CRSP will be keeping the members of the organization up-to-date on
the evolving commentary by judges on the defence of due diligence (as well as other defences). The
process of investigation by government agents, the laying of an information, courtroom procedures and
sentencing principles should be understood. The CRSP will be able to use prosecution cases for
educational purposes and will likely be called upon in many organizations to provide educational sessions
on the nature of due diligence.
1. Set out a model linking the IRS and the External Responsibility System.
2. Describe the proper role of the ERS given the IRS.
3. Show the significance of health and safety committee minutes with respect to the
inspector/officer.
4. List the ways in which the inspector/officer is drawn to the workplace.
5. Describe some of the typical powers of the inspector/officer.
6. Describe the various types of Orders/Directions – compliance/stop work, oral/written,
forthwith/time for compliance.
7. Set out the options and issues regarding compliance or appeal of Orders/Directions.
8. Discuss the constraints on the inspector/officer in terms of search and seizure.
9. Explain how one could tell that the inspector/officer is not operating pursuant to the IRS
philosophy.
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10. Understand the problems which complex multi-location organizations face when responding to
inspectors’/officers’ Orders/Directions.
11. Distinguish the different classes of offences: regulatory, criminal, strict liability, absolute liability.
12. Explain the deterrence rationale behind the prosecution of regulatory offences, and distinguish
“specific” and “general” deterrence.
13. Describe the common elements of offence provisions in OHS statutes, including typical penalties.
14. Explain the use of judges’ orders.
15. Be able to set out the main factors judges consider when sentencing.
16. Discuss the effect of plea bargaining on the prosecution process.
17. Show an understanding of courtroom procedure.
18. Outline the differences between ticketing procedures and the laying of an “information”.
19. Distinguish the several proper meanings of due diligence from the myths.
20. Explain how due diligence is related to risk reduction.
21. Distinguish between regulation-dependent and regulation-independent due diligence.
22. Describe the difference between due diligence as a defence and due diligence as a general duty;
setting out the implications of the latter for the workplace parties.
23. Understand the nature of other defences such as “reasonable mistake of fact” and defence of
“officially induced error”.
24. Distinguish proactive due diligence from reactive due diligence, with examples; showing how
reactive due diligence can function to drive the IRS and empower worker representatives and
committees.
25. Explain the several levels of due diligence activity for employers and supervisors.
26. Give examples of how the specific activities that would be due diligence differ depending on
position, authority, knowledge, risk and legal duty.
27. Give examples of programs and procedures within the OHS management system that would
assist with fulfilling specific legal duties.
28. Explain the difference between performance and documentation of due diligence, and provide
examples of how on-going due diligence can be proven.
29. Describe how a general duty clause for individuals radically shifts a person’s role from the
enforcing of, or the complying with, rules to creative OHS problem solving.
30. Identify existing OHS practises for supervisors, show how they further due diligence, and show
how they can be improved.
31. When will a written OHS system description amount to "shooting yourself in the foot", and when
will it not.
32. Understand the basic concepts in the law of evidence.
Competency LE8: The Obligations of a CRSP

With rare exceptions, there is no mention of OHS professionals in OHS legislation in Canada. CRSPs
would have legal obligations insofar as they are workers, supervisors, employers or independent
contractors. Legal consequences of professional errors and omissions are dealt with in LE10.
The CRSP should understand the nature of ethical obligations to a variety of persons. Inside the
workplace we would include obligations to the employers, co-workers and contractors. In addition, the
CRSP will have ethical obligations to the public and fellow professionals. We will focus in particular on
issues surrounding conflicts of interest.
1. Be able to describe the variations in obligation depending on whether the CRSP is an employee,
consultant or government agent.
2. Be able to identify the ethical issues in cases involving obligations to employers and co-workers.
3. Be able to provide ethically sound advice, or decide on an ethically valid course of conduct, when
faced with ethical problems involving employers and co-workers.
4. Be able to analyze and apply ethical concepts such as: competency; loyalty; confidentiality; risk
communication; and conflict of interest.
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5. Be able to describe who may constitute the “public” from an OHS point of view; what categories
of people may the CRSP have obligations to.
6. Be able to identify the ethical issues in cases involving obligations to the public.
faced with problems involving obligations to the public.
8. Be able to analyze and apply ethical concepts such as: competency; confidentiality; risk
communication; autonomy; human rights; transparency; and conflict of interest.
9. Be able to identify professionals beyond other CRSPs.
10. Be able to identify the ethical issues in cases involving fellow professionals.
faced with problems involving fellow professionals.
12. Be able to analyze and apply ethical concepts such as: loyalty to the profession vs. protection of
the public; professional courtesy; denigration; poaching clients; mentoring; and credit and
copyright.
Conflicts of Interest
The CRSP should understand the ethical principles and obligations relating to conflicts of interest.
The expression “conflict of interest” should be thoroughly understood. Is it the same thing as a conflict of
ethical values, as in a classic moral dilemma? Or, does it have more to do with the personal interests of
people? We will see that it’s important to understand whose interests are involved, and the nature of
those interests.
Many of the problems involving conflicts of interest have to do with the transparency of the interests; often
deception or omission of information are factors. In addition, there are well-recognized psychological
traps that tempt people into an “ethical blindness” about interests.

1. Understand the nature and importance of “conflicts of interest”.
2. Be able to identify the issues in cases involving conflict of interest.
3. Understand the psychological trap of “self-rationalization” that inhibits the professional from
clearly identifying a conflict of interest situation.
faced with problems relating to conflicts of interest.
5. Be able to describe the variations in conflict of interest problems depending on whether the CRSP
is an employee, consultant or government agent.
6. Be able to explain how a conflict of interest can go beyond an ethical lapse and become a
Criminal Code offence.
Competency LE9: The CRSP’s Obligations with Respect to the BCRSP’s Rules of
Professional Conduct (the Code of Ethics)
The CRSP should understand the BCRSP’s Rules of Professional Conduct (the Code) and the relevant
BCRSP Bylaws. This means, first of all, understanding why a professional code of ethics is needed. Why
are codes of ethics written using broad concepts and statements as opposed to “rules of behaviour” or
“ethical procedures”?
The CRSP should be able to provide an in-depth analysis of the values and principles in the BCRSP’s
Code. The key terms in a code of ethics almost always have more precise meanings than one might
suspect from the ordinary usage of words. For example, we often use the word “integrity” in day-to-day
conversation as if it meant “honesty”. It has a broader and more technical meaning than that, as we shall
see.
Law and Ethics (LE)
What is the difference between a value that is stated expressly in a code of ethics and one that is inferred
or implied? What does it mean to say that the “spirit” of a code of ethics should be followed as well as the
express wording?
Scenarios where each of the values or principles in the BCRSP’s Code could be at issue is the subject of
following Competencies where the values and principles in the BCRSP’s Code are applied to particular
groups of people with whom the CRSP interacts.
The CRSP should understand how codes of professional conduct are applied, and in particular, how the
BCRSP’s Code is used. How are complaints made and handled under the BCRSP’s policies?
The CRSP should be familiar with key concepts in the BCRSP Bylaws such as the definition of
“professional misconduct”, as well as the processes set out for handling complaints regarding
professional practice.

1. Exhibit familiarity with the BCRSP’s Code.
2. Be able to explain the nature and purpose of a professional code of ethics.
3. Be able to explain the meaning of each value or principle in the BCRSP’s Code.
4. Understand the consequences of a breach of a professional code of ethics.
5. Understand the relevant provisions of the BCRSP Bylaws regarding professional practice.
6. Be able to describe how a complaint of a breach of the BCRSP’s Code is commenced.
7. Be able to describe the process used to handle a complaint concerning an alleged breach of the
BCRSP’s Code.
8. Be able to set out the ways in which a case of professional misconduct can be resolved.
Competency LE10: The Consequences of Professional Errors and Omissions

The CRSP should understand the legal consequences of professional errors and omissions. In this
competency, we are not concerned with the consequences of acts or omissions leading to a complaint
that the BCRSP’s Code has been breached. Instead, we are concerned with the CRSP’s legal liability for
professional errors or omissions. Clearly, a scenario can give rise to both legal and ethical issues
simultaneously.

1. Understand the potential legal liability of the CRSP for errors or omissions in contract.
2. Understand the potential legal liability of the CRSP for errors or omissions in tort.
3. Be able to describe the effects of workers’ compensation regimes on liability of the CRSP.
4. Be able to describe various methods for reducing the legal risks of professional liability in OHS
practice.
5. Understand the role of professional liability insurance for the CRSP
6. Appreciate the variations in liability scenarios depending on whether the CRSP is an employee,
consultant or government agent.
Competency LE11: The Role of the CRSP and the Limits of Professional Practice
The CRSP should understand the limits of the CRSP’s professional practice. There are both ethical and
legal aspects to this topic. There are certainly ethical concerns where a CRSP mis-describes his or her
capabilities or skills. A person who has been harmed by the mis-representation may be able to sue for
compensation. There can be other legal consequences if the CRSP markets him or herself as providing
services that fall within the description of engineering or legal practice. There may be a prosecution under
legislation regulating the engineering or legal professions. The details vary between the provinces.
Law and Ethics (LE)

1. Understand the difference between a generalist in OHS practice and a specialist, and the various
relationships that can exist between them and the importance of clarity concerning the CRSP’s
“boundaries of competence”.
2. Appreciate the pressures that can result in an exaggeration or mis-description of services.
3. Be able to describe the problems that can arise when non-CRSPs market themselves as
possessing the skills and knowledge of CRSPs.
4. Understand what is meant by “engineering practice” and “legal practice” in professional regulatory
law and the implications for the CRSP whose scope of practice extends into the legally protected
activities of other professionals.
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Study Guide to Law and Ethics
Competency LE1: Principles of Law

The CRSP should possess a basic understanding of law in Canada.
What is the nature of law, and how it differs from other kinds of legal rules and forms of control in social
groups? A number of basic legal concepts and definitions must be understood by the CRSP – the
“vocabulary of law”. The constitutional basis for the federal and provincial jurisdictions over OHS (and
other related subject matters) must be understood. An introduction to statutory interpretation is given.
Understand the following basic terms and phrases:
law justice lawsuit

prosecution rule of law statutes
person natural person corporation
partnership The Crown Royal Assent
Bill Act regulations
by-law commencement enactment
proclaimed readings of bills section
subsection jurisdiction statutory law
preamble purpose clause compensation
deterrence punishment intentional harm
negligent harm strict liability common law
contract law tort law negligence
express implied adversarial system
inquisitorial system vicarious liability injunction
administrative law code adjudication
guideline reasonable person regulatory offences
criminal offences mens rea actus reus
constitutional law federal state head of power
division of powers POGG clause respondeat superior
property and civil rights paramountcy doctrine Charter of Rights and Freedoms
statutory interpretation construction of a statute B.N.A. Act
Constitution Act precedent stare decisis
intra vires ultra vires civil law
Gazette hearing trial
reverse onus remedy damages
declaration public law private law
sole proprietor master & servant contract of service
contract for services regulatory law quasi-criminal law
constitutional monarchy bijural legal system
separation of powers citation case reports
cause of action residual power privative clause
finality clause penalty acquittal
conviction standard of proof burden of proof
sources of law Boards Tribunals
legal opinion tortious tortfeasor
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Law and OHS

Law is used for two very broad purposes in occupational health and safety – to prevent harm to workers
from hazards associated with the workplace and to fairly compensate workers and their families if workers
are injured or die from work-related causes. The two purposes are not always separated. Some
jurisdictions in Canada have a single Act for both purposes and some have two separate Acts. Often a
compensation statute will use adjustments in insurance premiums that employers pay to motivate them to
reduce risk (one example of which is called “experience rating”). The federal government has jurisdiction
over prevention in federal workplaces but, with exceptions for the military and RCMP, does not have
jurisdiction over workers’ compensation. A federally regulated workplace will have its workers’
compensation dealt with by the province in which the workplace is located.
Although it may have been less true historically, today there are many reasons why an employer would
want to reduce risk in the workplace – the law is only one of them. There are moral and economic
arguments for OHS. The economic arguments can operate on a number of levels, from merely “reducing
losses” to “continuous improvement” and “quality”. An important characteristic of law is coercion – its non-
voluntary nature. If an employer can’t get motivated by one of the many non-legal reasons, then, in the
end, action must still be taken under threat of fines and/or imprisonment.
What is “Law”?
There many levels at which one could understand what “law” is. The levels at which we tend to operate
are at the levels of the legal materials and the concepts in them. We often refer to the sources of law as
“legal materials” such as Acts, regulations and case reports. The actual “sources of law” are the
legislatures and the courts that create those materials. We also refer to numerous procedural documents
such as “tickets”, summonses, informations, notices, orders, directions, citations, and so. More abstractly,
the law we are interested in is the concepts in the legal materials – the duties, rights, freedoms, powers,
and so on.
We can say that law consists of mandatory rules that govern or regulate how persons conduct their affairs
in society, but we have to be careful as there are many types of social rules – custom, manners, religion,
etc. Even the rules of hockey would count. We add that the rules have to have the correct pedigree, they
have to originate from the proper “sources of law” – the legislatures and courts. What are the rules that
tell us the proper sources of the rules? The constitutional rules are “rules about the rules” and they
originate in history, custom and politics. They become established in “constitutions” and “bills” or “charters
of rights”.
There are many characteristics of “law” – reason, morality, force, certainty, flexibility, non-perfection,
neutrality, equality, non-retroactivity, openness. An understanding of these will assist in understanding
why and how legal rules differ from the many other types of social rules. For example, if you don’t like the
official rules of hockey you can take your puck and go home, but if you don’t like the rules in OHS
legislation you can’t tell the Inspector you’re opting out. The worst that can happen if you violate the rules
of good manners is that no one will have lunch with you. If you refuse to comply with the OHS laws
eventually the Inspector will get a court order and the police and you’ll be handcuffed and dragged off the
worksite. Law is based on reason, not personal whim, rolling the dice or consulting with spirits. It is an
essential aspect of law that there have to be reasons for legislation and for court decisions. A court or
administrative hearing consists largely of rational arguments for and against positions and interpretations
of the law. Law is closely associated with morality, although it is not a one-on-one relationship with
morality. An important area of morality is “justice” and justice lies at the basis of legal rules.
Law and Justice

The “forms of justice” may seem to some to be rather abstract, but an understanding of them will assist in
an understanding of the nature and purpose of many legal rules. “Compensatory”, “corrective” or
“commutative” justice refers to “fairness” in balancing the relations of individuals when one party has
harmed another. In the law of torts, it is “fair” if the victim is put in the position he or she would be in if the
wrong-doer had not caused the harm. We usually do this through money. The workers’ compensation
systems in the provinces have replaced much of the litigation over workplace harms, but they too seek
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fairness in compensation. The law of contracts seeks to put the victim in the position they would have
been if the contract breaker had complied with the contract.
“Distributive justice” seeks fairness in how things are distributed in society – all persons are entitled to
human rights, all workers are entitled to equal pay for work of equal value, all people are entitled to
iPads– if they pay for them. What is “unfair” is a distribution not in accordance with the accepted
distributive criterion.
“Procedural justice” is fairness in how decisions are made – the rules of evidence and the rules of civil,
regulatory and criminal procedure are the best examples of how law is designed to fulfill the principles of
procedural justice.
“Retributive justice” is fairness in how penalties are matched to the seriousness of the offence. It is unfair
to give a heavy penalty for a trivial offence or a slight penalty to a serious offence. It is important to note
that the forms of justice operate in a professional setting. A professional such as a CRSP should, as a
matter of professional ethics, seek to respect the forms of justice when making professional decisions
regardless of the absence of a legal rule.
Duties and Rights

An important pair of concepts is “duty” and “right”. Legal duties and rights, as opposed to moral duties
and rights, are found in statutes and in the common law (case law). A duty is an obligation to do
something (positive duty) or not do something (negative duty). At common law it is usually a private
individual enforcing a legal duty to, for example, comply with a contract, or behave in an non-negligent
manner. While some statutes create duties that individuals can sue in regards to, most statutory duties
are enforced by the Crown by the use of orders or prosecutions.
A right is a claim that someone has on another person or on the State. Fundamental human rights are in
a class of their own, particularly if they are in the Canadian Charter of Rights and Freedoms. Provincial
and the federal human rights codes are rather narrow in the rights they enforce – usually equality and the
right to non-discrimination. Many other rights found in statutes are related to the statutory duties and are
not as fundamental as Charter rights or human rights. The power of a Charter right is that if a statute
violates it, the statute (or a part of it) can be nullified by the courts. That is not the case for human rights
codes other than the Charter.
A right commonly referred to in OHS practice is the “right to know” about hazards. It is actually a
misnomer as the legal reality is that it consists of “duties to tell” on the part of the employer and perhaps
supervisors (depending on the jurisdiction). It’s a misnomer because a worker actually has a duty to take
instruction and apply knowledge to the job at hand. A right is usually exercised at the discretion of the
right-holder. A right that must be exercised is actually a duty. A worker cannot legitimately say “I’d rather
not know about the hazards”. On the other hand, a worker’s right to refuse unsafe work is a true right –
it’s in the discretion of the worker whether to exercise it or not. Most OHS statutes will say a worker “may”
refuse to do unsafe or dangerous work. Most will say a worker “shall” report hazards. The former is a right
and the latter is a duty. Statutory duties are enforced by Orders and prosecutions. A right in OHS statutes
is enforced largely by the parallel duties in others. An employer will be prosecuted for its failure to fulfill its
duty to tell about hazards – the flip side of the right to know.
The Legal System

We make, administer, enforce, interpret, apply and amend law in the context of a “legal system”. As for
any type of true “system”, the legal system has sub-components or elements. These are in the form of the
participants and the institutions. The legal system has processes that connect these elements – hearings,
inspections, detention, collection of evidence, notices, etc. As a “system” the legal system has a purpose–
to maintain and improve the legal rules that govern people and organizations in society in the context of
furthering justice. The legal system, like any true system, has feedback mechanisms that monitor the
status of system elements and so keep the system healthy and functioning properly – law reform
commissions, Royal Commissions, political processes, the media, etc.
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Review the roles of the following in the legal system – legislatures (making the law), courts (interpreting
and applying the law), bureaucracies (drafting and administering the law), police and inspectors
(enforcing the law), CRSPs and workplace OHS committees (usually assisting with compliance with the
law), citizens (voting for law makers). There is often confusion about roles. The Ministry or Department of
Labour (however named) doesn’t make the law – the legislature does. The inspector or officer may have
opinions as to how the law should be interpreted (which will be useful in predicting the Inspector’s
behaviour) but the official source of interpretation is the courts. Many “official” interpretations are actually
predictions of what the courts will do. A lawyer’s opinion on the law will be based partly on the wording of
statutes and past cases (what the courts have said in the past) but also on a reasoned prediction of what
courts will say on issues that have not yet come before the courts.
Regarding the court system, the English legal tradition is an “adversarial” system of “adjudication”, as
opposed to an “inquisitorial” system, found in continental Europe. In an adversarial system, the judge is
relatively passive – the parties to the legal proceedings do all the work, presenting evidence and the law.
The idea is that though conflict, both sides doing their best to show the merits of their own case and the
flaws in their opponent’s case, the judge will observe who has the best case. In the inquisitorial style of
adjudication, the judge is far more active, going and getting evidence and experts and even deciding who
to prosecute. An inquisitorial system exists in Canada in some regulatory regimes. For example, under
the Canada Labour Code, an appeals officer has all the powers of an ODML (officer) and has the quasi-
judicial powers of an administrative board or tribunal. A hearing in front of such an appeals officer is more
like an investigation; the appeals officer can ask for information beyond what the parties bring to the
hearing.
A legal “hearing” is a proceeding where the parties present their evidence and make their arguments. A
“trial” is one sort of hearing. A trial is usually the first full legal proceeding in what may be a series of
hearings. It is heavily oriented towards evidence and facts. There are also “administrative hearings”,
which are before Boards and Tribunals and which are more informal in process and are more relaxed
about the “rules of evidence” than court proceedings.
If a party is unhappy with the result of a trial, that party may “appeal” to a higher court, or in the case of
administrative hearings, to a higher Board or Tribunal, or to the courts. The party appealing is called the
“appellant” and the responding party is called the “respondent”. Sometimes both parties appeal on
different issues.
The court structure is different in each province and courts have different names. Figure 1 is a simplified
view of the court system in Canada. The Supreme Court of Canada is, as its name suggests, the final and
highest court in Canada. The appeal of an officer’s direction under the Canada Labour Code, Part II is
taken to an appeals officer. The latter’s decision can be taken to the Federal Court of Canada for judicial
review. Appeal of a provincial administrative tribunal’s decision under a provincial OHS Act will be taken
to provincial court.
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Figure 1. The court system in Canada
An appeal of an administrative board or tribunal’s decision to a court is not like an appeal from a trial
judge’s decision to a higher court. The appeal of an administrative decision is more properly called an
application for “judicial review”. An OHS inspector/officer does not give the recipient of the order/decision
an opportunity for a hearing. So the appeal of the order/decision to an administrative board or tribunal is
the first full hearing of the issues. It is a hearing “de novo”. When the administrative decision is appealed,
the court shows more deference to the administrative decision than it would to a decision of a trial judge.
The appeal court will not usually overturn an administrative decision as long as it is in the realm of
“reasonableness”. There are some circumstances however where a court will hold an administrative
board or tribunal to a higher standard of “correctness”.
Spend some time contemplating all the ways in which a CRSP interacts with other participants in the legal
system regarding OHS law and related areas of law:
 obtaining legal materials
 obtaining and communicating official and unofficial interpretations of OHS law
 assisting others in the organization with their due diligence or compliance activities
 Liaison with inspectors and officers from a variety of regulatory regimes – OHS, environment, fire,
public health, public safety (elevators, liquid fuels, building code, propane, electrical, etc.)
 preparation for and appearance before various administrative Boards and Tribunals – OHS,
workers’ compensation, human rights, labour relations, environment, public health, etc.
 working with lawyers in their provision of opinions and in their preparation for legal proceedings
 providing evidence, both expert and non-expert evidence, in legal proceedings
 working on professional and organizational committees that produce recommendations for
changes in OHS law
A CRSP will become well versed in OHS law. The CRSP may well have more intimate knowledge of
hundreds of cases that have interpreted and applied OHS regulatory law than many lawyers. But at the
end of the day a CRSP should be very careful not to suggest that he or she is giving a “legal opinion”.
Provincial legislation governing the legal profession usually restricts the giving of legal opinions to those
who are licenced and insured to practice as lawyers. It is a form of professional malpractice for a CRSP to
step over the line and perform the functions of a lawyer unless the CRSP is a lawyer.
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Constitutional Law
“Constitutional law” is a superior type of law as it sets the rules for the rest of the legal system. In 1867
Canada was created as a country by a British Act called the British North America Act (BNA Act). It has
been the main source of constitutional law in Canada. Canada is a “federal state”, not a “unitary state”,
meaning the federal and provincial governments have their own intrinsic jurisdictions. Municipal
governments are creatures of the provinces and do not have their own constitutional jurisdiction. The
three Territories in Canada are creatures of the federal government and also do not have a separate
constitutional jurisdiction.
The BNA Act established the authority of the legislatures and the court system in Canada and so
established the main structure of our legal system. The historical intent of placing separate powers in the
hands of the legislatures, courts and executive (Prime Minister/Premier/Cabinet) was to reduce the
likelihood of tyranny (although this was less well thought out than in the US) and this is called the
“separation of powers”. Similarly, the idea behind a federal state with subject matters divided between
governments was also meant to protect liberty. This is called the “division of powers”.
In the BNA Act, sections 91 and 92 listed the subject matters within the jurisdiction of the federal and
provincial governments respectively. The subjects on the lists are called “heads of power”. The lists
represent what was significant in 1867. “Environment” and “health and safety” were not on the lists in
1867 – expressly. Subsequent constitutional cases before the courts since 1867 have added new subject
matters.
In 1982, the British passed the Canada Act to hand over the BNA Act to Canada, and Canada passed the
Constitution Act to contain the wording of the old BNA Act. At the same time, the Canadian Charter of
Rights and Freedoms was added onto the Constitution Act. 1982 was a legal revolution in Canada since
the Charter gave the courts the power to overturn legislation that violated the principles in the Charter.
Before 1982 the courts could only strike out legislation if it was “ultra vires” (out of jurisdiction).
The concept of “jurisdiction” is an important one. Jurisdiction refers to the area or scope of decision-
making that one rightfully has. Jurisdiction may be “subject matter jurisdiction” or “geographic jurisdiction”.
The concept is related to the “rule of law”. Power over others must be exercised in accordance with law.
Legal rules about jurisdiction help set the boundaries of the use of power. Constitutionally, levels of
government in Canada have jurisdiction over certain subject matters and not others (we call this the
“division of powers”). A government has jurisdiction over a certain geographic area on the map as well.
Note that a government is free to construct its own subject matter and geographic jurisdictions within its
constitutional jurisdiction – we can call this “bureaucratic” or “administrative” jurisdiction. For example, a
province is free to combine OHS and environment under a single Ministry or Department and to subdivide
the province into regions within which an Inspector has jurisdiction. But a province can’t make criminal
law and the federal government can’t regulate public hospitals. Nova Scotia can’t make laws for BC.
Being within jurisdiction is called “intra vires” and being out of one’s proper jurisdiction is “ultra vires” – two
useful Latin expressions in case you’re at a cocktail party for lawyers.
Our legal system is based primarily on the English style of constitutional government. Canada is a
“constitutional monarchy”, so that the Crown is the source of sovereign power. It is somewhat of a legal
fiction as the legislatures have the power to make laws, but they do so with the consent of the Crown. The
Governor General is the Crown’s representative federally and the Lieutenant Governor is the Crown’s
representative provincially. The Crown’s representatives give “Royal Assent” to Acts that are passed by
the legislatures. The federal cabinet is officially called the “Governor in Council” and passes federal
regulations, and the provincial cabinet (with some variation across Canada) is called the “Lieutenant
Governor in Council”, which passes provincial regulations.
Canada is a “bijural” country in the sense that the English common law exists in all jurisdictions except
Quebec, where civil law is based on a version of the Napoleonic Code. There are several meanings of
“civil law”. The rules that are in the court cases in common law jurisdictions are in a statutory document
called the “civil code” in Quebec. Outside of Quebec the “civil law” usually means the common law.
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It is vital that the CRSP be sure which level of government has jurisdiction over a particular workplace or
subject matter of concern. OHS is not the only “subject matter” of concern. We are interested in:
 OHS prevention
 OHS compensation
 environmental protection
 public health
 public safety
 criminal law
 common law
 human rights
 labour relations
The general rule for OHS prevention is to first determine if a workplace is generally federally regulated. Is
the workplace listed in section 91 of the Constitution Act? Has it been added by a court case since 1867?
The courts use the preamble to section 91 to authorize federal jurisdiction over new subject matters that
come up:
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate
and House of Commons, to make Law for the Peace, Order and Good Government of
Canada, in relation to all Matters not coming within the Classes of Subjects by this Act
assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but
not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby
declared that (notwithstanding anything under this Act) the exclusive Legislative Authority
of the Parliament of Canada extends to all Matters coming within the Classes of Subjects
next hereinafter enumerated; that is to say, ...
This paragraph is called the “POGG clause”, for “Peace, Order and Good Government”. It is also call the
“residual power”. The courts have applied a two-pronged test: is the new subject one of “national
concern” or “national dimension”, or is it a “national emergency”? If so, the new subject is federal. The
“national dimension test” asks if the new subject matter is beyond the ability of a single province to readily
address the problem. If the subject matter crosses borders or involves other countries it will almost always
be seen as a federal subject.
Several workplaces are mentioned in section 92(10) as exceptions to provincial jurisdiction – ships,
railways, canals, telegraph. The courts will take a word like “telegraph” and reason from analogy to say
that “telecommunications” is federal (telephone, cable, radio, TV, internet). Thus, new subject matters can
be classified federal/provincial by analogy. There is also a “declaratory power” whereby the federal
government can declare some subject matters to be federal (canals, flour mills, seed mills).
Taking s. 91 and the court cases together, here is a list of federally regulated workplaces:
 federal civil service (e.g. federal prisons, not provincial prisons)
 federal Crown agencies (e.g. Canada Post)
 banks (not trust companies and credit unions)
 railways (but not if the provincial Crown runs it) and train stations
 shipping and harbours and “stevedoring”
 telecommunications (telephone, cable, optics, satellite, internet)
 canals
 cross-borders works (bridges, tunnels, dams, the St. Lawrence Seaway)
 airlines and airports
 the RCMP
 grain elevators, flour mills, seed mills
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 ferries (but not if the provincial Crown runs it)

 trucking (cross-border)
 bus lines (cross-border)
 courier (cross-border)
 military
 pipelines (cross-border)
 radio
 native lands
 uranium mines and nuclear safety
 exploration and drilling oil & gas on federal lands (e.g. the Territories)
The rule is that if the workplace is generally regulated federally, then OHS prevention is also federal. This
doesn’t automatically mean the Canada Labour Code, Part II applies. The military operational people are
federal, but they are under military law and not the Canada Labour Code, Part II.
One immediate exception to the above rule is that if a provincial Crown agency is carrying on one of the
above activities, the jurisdiction shifts to the province. For example, a provincially run ferry or train service
will be provincial and under the province’s OHS legislation.
The corollary to the above rule is that all else is provincial. Hence the following are under provincial OHS
prevention laws:
 manufacturing, industrial
 retail
 mining (not uranium)
 forestry
 municipalities (and fire, police)
 non-federal governments
 provincial Crown agencies
 local busing and local couriers
 schools, colleges and universities
 hospitals
 credit unions
 residential institutions (e.g. homes for the aged)
 construction
 office work (not otherwise federal)
The rationale for provincial jurisdiction over the remaining workplaces is based in section 92, para 13
“property and civil rights”.
13. Property and civil rights in the province
“Civil rights” means common law rights, which include the law of contract. This includes employment
contracts, which includes conditions of work, including health and safety. It’s a long and tortured line of
reasoning.
It is possible for the federal government to delegate enforcement to a provincial government – uranium
mining for example.
The CRSP will also be aware of complexities such as intrusions into jurisdictions. A provincially regulated
construction company going into a “federal enclave” such as an airport or railway station will bring their
provincial jurisdiction with them. Similarly, a telecommunications worker going into a provincial factory will
bring the Canada Labour Code, Part II with them for their own work. If federal and provincial workers end
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up working together in a mixed crew, the general rule is that the more stringent standard applies. This is
an agreed protocol and not a constitutional rule.
“OHS compensation”, or “workers’ compensation” is a different subject matter than OHS prevention. The
rule is different. Workers’ compensation is almost always provincial, even for the federal civil service. A
federal worker will have his or her OHS concerns dealt with under the Canada Labour Code, Part II and
his or her workers’ compensation issues dealt with under the workers’ compensation legislation of the
province he or she is working in, or based out of.
The Government Employees’ Compensation Act (GECA) is a federal Act, but is not a comprehensive
workers’ compensation regime. Two rules from this Act are important: 1) if you work for the federal
government outside of Canada, you are deemed to be working in Ontario and are thus under Ontario’s
workers’ compensation legislation; and 2) if you are working in a Territory you are deemed to be working
in Alberta, and thus under Alberta’s workers’ compensation legislation. As a minor exception, operational
military personnel and the RCMP are under a federal pension regime for their workplace disabilities, not a
provincial workers’ compensation Act.
Sometimes workplace exposures to hazards will also affect members of the public: students, patients,
shoppers, etc. Then their health issues will fall under “public health”, not OHS, and a local public health
inspector may become involved (an example might be mould in schools). “Public health” is a “shared
subject matter”, meaning both federal and provincial governments can simultaneously regulate. If there is
a conflict, the federal one (not necessarily the more stringent one) takes priority. This rule is called the
“paramountcy doctrine”. This doctrine only applies to shared subject matters. The three shared subject
matters we are interested in are:
 public health
 environment
 farming
Smoking in the workplace generally follows the federal/provincial division regarding OHS prevention. The
federal Non-Smokers’ Health Act will prohibit smoking in federal enclaves such as airports and train
stations, while a provincial or municipal law will potentially regulate smoking in all other public or
occupational spaces.
“Environmental protection” is a shared subject matter. Hence, the CRSP who is also responsible to some
degree for the organization’s environmental management system will need to be familiar with both federal
and provincial environmental laws. It is critical to understand that a company can face charges under a
federal and a provincial environmental statute simultaneously.
“Public safety” is not a well-defined subject matter and there are federal and provincial aspects to it. As a
general rule, public safety at the local level is provincially regulated. Elevators, propane handling, boilers,
liquid fuel safety, building safety, explosives handling, pesticide handling, etc. are primarily provincial.
Many public and occupational hazards, such as explosives and pesticides, will have a federal statute
governing classification, labelling and packaging, but safe handling will be provincial. There have been
disputes about boilers and elevators in federal buildings – are they regulated federally or provincially?
Generally any constitutional issue in dispute is unlikely to show up on the CRSP exam.
“Criminal law” is always federal. A provincial statute may have fines and a jail sentence, but it’s still not
“criminal law”. Most federal criminal law is found in the Canadian Criminal Code. Bill C-45 was a bill that
amended the Criminal Code regarding criminal negligence. Provincial Ministries or Departments of
Labour do not enforce the Criminal Code. Police officers, however, do.
The “common law” is under provincial jurisdiction. Thus, the ability to pass legislation amending common
law contract and tort rules is in the provincial jurisdiction. That is why it is provincial Acts that prohibit
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worker lawsuits against employers and create workers’ compensation schemes to replace common law
lawsuits.
Two areas of law that are important to the CRSP are occupier’s liability and products liability. These are
under provincial jurisdiction with respect to lawsuits. The provinces will have common law lawsuits or
statutory regimes or both available for people who are injured or killed entering onto premises. Products
liability may involve lawsuits in either contract or negligence.
Human rights and labour relations follow the general rule for OHS prevention. If the workplace is under
the Canada Labour Code, Part II for OHS prevention, the workplace is almost certainly under the rest of
the Canada Labour Code, Part II for labour relations. Similarly, one would take a human rights complaint
under the Canadian Human Rights Act. If one’s OHS prevention concerns are under a provincial OHS
Act, then human rights concerns will be under a provincial human rights Act and labour relations or
employment standards under a provincial statute. Be clear that “Charter rights” are not the same as
“human rights”, and Charter rights are always federal, under the Canadian Charter of Rights and
Freedoms, regardless of whether one is in a federal or provincial workplace.
Canadian Charter of Rights and Freedoms

The Charter is a constitutional document in existence since 1982. It is not like a provincial human rights
code or the federal human rights statute. It transfers power from the legislatures to the courts. If the
legislature has passed legislation that violates a Charter right or freedom, the courts can over-ride that
statute. The behaviour of government officials, which is authorized by statute, must also conform to the
Charter’s standards. The Charter applies to federal, provincial and territorial governments and their
agencies. It does not apply to the private sector as do human rights codes.
Application of Charter
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all
matters within the authority of Parliament including all matters
relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of
all matters within the authority of the legislature of each province.
The Charter is meant to restraint the power of governments when it comes to basic rights and freedoms.
The democratic majority can do anything it wants in a legislature – except violate the basic rights and
freedoms of an individual. This general statement is modified by section 1 of the Charter and by s. 33.
1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.
Under section 1, the onus is on the government to prove that its infringement of a right or freedom is
reasonable. It is called “the Oakes test” (after a particular case) whereby the infringement must be limited
and directly relevant to solving a serious social problem. Pulling drivers over to test for alcohol
consumption is a reasonable infringement on one’s right to travel around freely.
It is primarily the legal rights under the Charter that can give rise to issues that the CRSP may become
involved with:
Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not
to be deprived thereof except in accordance with the principles of fundamental
justice.
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Search or seizure
8. Everyone has the right to be secure against unreasonable search or seizure.
Detention or imprisonment
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Arrest or detention
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that
right; and
(c) to have the validity of the detention determined by way of habeas corpus
and to be released if the detention is not lawful.
Proceedings in criminal and penal matters

11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
(b) to be tried within a reasonable time;
(c) not to be compelled to be a witness in proceedings against that person in
respect of the offence;
(d) to be presumed innocent until proven guilty according to law in a fair and
public hearing by an independent and impartial tribunal;
(e) not to be denied reasonable bail without just cause;
(f) except in the case of an offence under military law tried before a military
tribunal, to the benefit of trial by jury where the maximum punishment for
the offence is imprisonment for five years or a more severe punishment;
(g) not to be found guilty on account of any act or omission unless, at the
time of the act or omission, it constituted an offence under Canadian or
international law or was criminal according to the general principles of
law recognized by the community of nations;
(h) if finally acquitted of the offence, not to be tried for it again and, if finally
found guilty and punished for the offence, not to be tried or punishment
for it again; and
(I) if found guilty of the offence and if the punishment for the offence has
been varied between the time of commission and the time of sentencing,
to the benefit of the lesser punishment.
Treatment or punishment
12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.
Self-incrimination
13. A witness who testifies in any proceedings has the right not to have any
incriminating evidence so given used to incriminate that witness in any other
proceedings, except in a prosecution for perjury or for the giving of contradictory
evidence.
Interpreter
14. A party or witness in any proceedings who does not understand or speak the
language in which the proceedings are conducted or who is deaf has the right to
the assistance of an interpreter.
Both federal and provincial inspectors or officers have to be in compliance with sections such as s. 8
above regarding search and seizure.
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Section 33 of the Charter allows a legislature to state in a statute that a right or freedom will be infringed
regardless or “notwithstanding” the Charter. This was intended to preserve democratic power over the
courts.
Statutory Law
“Statutory law” refers to the laws passed by legislatures. These statutes are usually called Acts. The word
“Act” has a capital “A”. We sometimes refer to regulations passed by Cabinets as “statutory law” along
with Acts, as they are written in a statutory style and they get their legitimacy from a statute. Regulations
are authorized by Acts and do not stand alone. A Cabinet cannot make regulations unless a legislature
has delegated that power to them in an Act. Acts are usually more general and “enabling” than
regulations, which are more detailed and technical.
The word “code” is sometimes confusing. It simply means that a document is written in a statutory style. A
“code” can be an Act, a regulation or a guideline. The Canada Labour Code, Part II is an Act. A fire code,
a gasoline handling code or a building code could be an Act or a regulation depending on the province.
There are also many guidelines that are called “codes”. A guideline is not legally mandatory on its own. A
guideline can become law if it is adopted by an Act or a regulation. A guideline can also be used as a
standard for what is “reasonable” by way of due diligence.
Statutory law is very important in OHS practice as OHS and environmental Acts and regulations are
“statutory law”. Things can be confusing. A “regulatory regime” or “regulatory law” can refer to both an Act
and its regulations. The phrase “regulatory compliance”, however, usually refers to compliance with the
regulations, whereas “statutory compliance” often refers to compliance with both an Act and its
regulations. Hence, being in compliance with regulations does not preclude being in breach of the parent
Act, such as breach of a general duty or due diligence clause.
How are statutes created? A draft Act is called a “bill”. A “government bill”, as its name suggests, is
introduced to the legislature by the party in power and should normally pass into law. A “private member’s
bill” may be submitted by any member of the legislature and rarely succeeds, unless it is for something
like “the provincial rock” or “the provincial lichen”. Significantly though, an opposition member’s failed
private member’s bill on OHS reform may foreshadow a future government bill after the next election, so
they are often worth examining by OHS professionals.
A bill receives three “readings” before the legislature. After 2nd reading it “goes to committee” where it is
scrutinized and may be amended. A CRSP involved in lobbying for legal changes can have some behind
the scenes political impact at this stage (although influence is far more effective prior to the bill’s
introduction). One must be careful to use the latest version of a bill, and certainly use the final Act rather
than a copy of a bill if the bill passes. The bill receives “Royal Assent” after 3rd reading, and is therefore
“enacted”, but it may or may not be in force. An Act may be in force, or “commence” upon Royal Assent,
on a date set out in the Act or on a “day to be proclaimed” – one must check the Act for the wording to
see when an Act commences.
Regulations may or may not be passed by Cabinet for some time. It is not uncommon for an Act to
authorize specific types of regulations, but then years pass before the regulations are made. An Act may
have no regulations, some or many. Regulations, though, do not exist on their own.
One should be aware of the official government publication in one’s jurisdiction. Federally it is called the
“Canada Gazette”. This is where proclamations, notices and regulations are first printed. They are now
normally available on line. The CRSP will subscribe to or regularly check the relevant Gazette so as to be
up to date (and avoid paying big fees to go to conferences to have people tell you about new laws you
could have downloaded yourself).
To find Acts and regulations for any Canadian jurisdiction, go to www.canlii.org. As well, the relevant
government Ministry will also have legislation on line, and the value of this is that you may well find
commentaries on the legislation.
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Figure 2. Statutory law and caselaw.
The CRSP should be familiar with how Acts, regulations and cases are “cited” in his or her jurisdiction.
The name of an Act or regulation is always underlined, italicized or in bold. The dates and numbers after
an Act or regulation completes its “citation” and allows one to know whether the citation is up to date and
where to find the original.
“By-laws” are laws passed by municipalities. They are like regulations in the sense that they must be
authorized by a statute, in the case of by-laws by provincial Acts. Historically, some by-laws had OHS
content; few do today. A current example would be smoking by-laws. But there are many municipal by-
laws in most large Canadian municipalities that are environmental in nature: litter, garbage, tree-cutting,
noise, nuisance, rodent control, pesticides, sewer dumping, drainage, and so on. They are sometimes
overlooked in environmental audits. It has been said that in some municipalities you are more likely to run
into a sewer Inspector than a provincial government environment Inspector.
Statutory Interpretation
CRSPs spend a great deal of time reading and interpreting Acts and regulations (and not just the direct
OHS legislation). Reading and interpreting legislation (“constructing legislation”) is an acquired skill that,
historically, only legal professionals were expected to develop. Given the sheer volume and intrusiveness
of government regulations in almost all aspects of life, however, it is necessary for many non-lawyers to
develop their skills. It is the courts that have the final say on what legislation means. A CRSP’s
interpretation of legislation should never be held out as a “legal opinion” unless the CRSP is also a
lawyer.
OHS legislation is “public welfare” legislation, not criminal law. Public welfare legislation should be
interpreted liberally and broadly so as to further the purpose of the legislation. Criminal law should be
interpreted strictly in favour of the liberty of the defendant. The purpose of an Act is sometimes helped by
a “purpose clause”. The purpose of an OHS Act can generally be said to be “protection of the life and
health of workers”. It can also be said more specifically that the purpose of an OHS Act is to protect
workers through the IRS.
The “golden rule of statutory interpretation” is as follows:

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The words of an Act are to be read in their entire context and in their grammatical and
ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament. (Driedger, Construction of Statutes, 1983, p.87)
One important sub-rule is that one should not read a section of an Act in isolation. The meaning of a
section must be taken in the context of the whole Act. A good example of this is how words that have
peculiar meanings as defined in an initial section of the Act will reappear throughout the Act. Their
peculiar meanings will change the meaning of a section in which they appear. It is critical to understand
that an Act can create its own legal, fictional universe ... if red is defined as yellow, then red IS yellow for
the purposes of the Act. As in Alice in Wonderland, words mean whatever the legislature wants them to
mean. If a word is undefined, use the dictionary (“grammatical and ordinary sense”), but if a word is
defined then it has a peculiar meaning. Be very sensitive to when a word changes. An OHS Act may say
“worker” or “employee” throughout the Act, but then use the word “person”. This signifies that people
other than workers will be considered as well as workers. You may have to give notice of an injury to a
“person” in your workplace even though that “person” is a patient, customer or student and not a “worker”
or “employee”. Also, do not use freely definitions from one Act into another. A “worker” under one Act may
be defined differently than “worker” under another Act.
As mentioned, the “intent of the legislature” is a key part of the golden rule of interpretation. One must ask
“what problem was the legislature trying to solve with this Act and generally how are they trying to solve
it?”. To determine the intent, one must look at the whole Act, the preamble (if any), and very, importantly,
the “purpose” clause (if any). If there are competing interpretations of a particular section, choose the one
that leads in the direction of the intent of the legislature. Here is an example of a “purpose clause” in the
Canada Labour Code, Part II:
Purpose of Part
122.1 The purpose of this Part is to prevent accidents and injury to health arising out of,
linked with or occurring in the course of employment to which this Part applies.
There are (following Driedger), however, some narrower "presumptions" which are sometimes called into
play:
1. Criminal statutes are to be construed strictly and in favour of the accused.
2. Statutes are presumed not to alter the common law, unless the language is express.
3. Presumption that criminal offenses contain a mens rea element.
4. It is presumed that the Legislature did not intend to create a retroactive offence.
5. Presumption against ousting the jurisdiction of the courts.
6. At common law, the Crown is immune from lawsuits in torts (Crown liability statutes take
this away, however). As well, a statute does not bind the Crown unless the statute
expressly states that it does.
7. Presumption against surplusage -- each word in the statute has meaning.
8. Generalia specialibus non derogant -- when two or more statutes of the same jurisdiction
are applicable to the same factual problem, the more specific statute takes priority if there
is a conflict.
9. Leges posteriores priores contrarias abrogant -- If there are conflicting statutes of equal
specificity then the more recent statute takes precedent.
10. De minimis non curat lex -- the law does not concern itself with trifles
The words “express” and “implied” are used a great deal in legal interpretation and “construction”
of a statute. If something is “express” it means it is there in the statute in black and white. An
express duty to train would be:
s.125(1)(z) ensure that employees who have supervisory or managerial

responsibilities are adequately trained in health and safety and are
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informed of the responsibilities they have under this Part where they act
on behalf of their employer;
Whereas, an “implied duty” is something that is inferred; you have to read between the lines. Much of
what is due diligence as a defence is actually what is inferred in a specific duty. In the following duty,
there is no way an employer can ensure that someone is competent unless the person is properly trained.
Paragraph (c) doesn’t expressly say “train”, but that is inferred.
s. 25 (2) ... an employer shall,

(c) when appointing a supervisor, appoint a competent person;
Common Law
The CRSP should possess a basic understanding of the principles of common law.
Statutory law is distinguished from common law outside of Quebec. Common law is “judge made law” and
is found in the cases. The cases are written by judges and are published in the “case reports”, such as
The Dominion Law Reports. There are dozens of case reporting series in Canada, many of them are
province-specific or subject matter specific. Some cases are not officially published and are called
“unreported cases”. They are still law and can be cited. The case law goes back hundreds of years.
The subject matter of case law is primarily the common law. So, for areas of law such as negligence,
nuisance, trespass, defamation, civil assault, riparian rights and contract law, the substantive legal rules
are found in the cases. The Latin expression “stare decisis” refers to “standing by that which has already
been decided” and is the principle at the heart of the concept of “precedent”. One must “treat like cases
alike” to be just, so in the common law we look for similar cases and how they were decided in the past.
The common law is thus inherently conservative in order to be consistent and reliable. It can, however,
evolve over time with changing technology, social problems and social values.
Today, most of our concerns surround the application of statutory law. Yet we still need to understand the
nature of common law actions. A “lawsuit” is not the same thing as a “prosecution”. A common error is to
misuse the words “lawsuit” and “prosecution”. A lawsuit usually refers to legal proceedings where one
party is suing another for a “remedy” such as “damages” (monetary compensation) or an “injunction” ( a
court order prohibiting the defendant from doing something {“prohibitory injunction”} or ordering the
defendant to take certain positive action {“mandatory injunction”}). A “prosecution” is a legal proceeding
where the State is charging the defendant with an “offence”, that is, a breach of an Act or a regulation. In
a prosecution, the “prosecutor” is seeking a “penalty” such as a “fine” or a term of imprisonment.
Increasingly, courts are authorized to order the defendant to take a variety of actions in addition to a
penalty. The conclusion of a prosecution is an “acquittal” (defendant is innocent) or a “conviction”
(defendant is guilty of committing the offence).
A similar sounding phrase to standard of proof is “burden of proof” (sometimes called the “onus of proof”)
– who has the onus of carrying the legal proceeding forward? The general rule is the party who starts the
proceedings has the burden of proof – the plaintiff or the prosecutor. A defendant can sit back and see if
the plaintiff or prosecutor has made their case – if not the judge may dismiss the case without hearing
from the defendant. Usually, however a defendant will want to make a specific defence, and the burden of
proof for that defence will be on the defendant.
In some OHS scenarios, the burden of proof will be reversed – a “reverse onus” clause in a statute may
say, for example, that once a worker has made an allegation of reprisal for engaging in health and safety
activities authorized under an OHS Act, the employer has the burden or onus of disproving the allegation.
This is because of the much greater control over workplace sources of evidence that the employer has.
The common law is relevant to the CRSP insofar as lawsuits are possible. Most lawsuits involving the
negligence of the workplace parties have been prohibited by workers’ compensation statutes. It is vital to
understand, however, that not all such cases have been prohibited. It varies between the provinces, but
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some workplaces are not covered by worker’s compensation. As well, if workers’ compensation doesn’t
cover accidents to and from work, a worker can sue for an accident while travelling based on negligence
at work.
Further relevance of the common law is seen in the area of “products liability”. This is important, as a
workplace accident may be caused by the negligent design, manufacture or packaging of a tool, machine
or material and the manufacturer may be out of the jurisdiction of the workers’ compensation legislation.
As well, the occupier of the workplace may be liable to the entrant (visitor, student, patient customer)
under the law of “occupiers’ liability. Finally, there are many lawsuits that can arise from environmental
accidents where a worker cannot sue, but the neighbours, who are not covered by workers’
compensation, can sue for the environmental harm to their property.
Thus, it is important for the CRSP to understand that “regulatory” or “statutory” compliance, while 80 -
90% of the job, is not the whole of the legal liability regime. One must protect against a variety of possible
lawsuits as well as prosecutions.
Tort Law
There are several large areas of law within the common law – torts, contract and property law are the
three big ones. Tort law refers to “torts” and a tort is a private wrong, other than a breach of contract,
recognized by law. To sue someone in tort is to sue them for their “tortious conduct”, and that person is
called a “tortfeasor”. To sue in tort, the plaintiff must place the complaint into a recognized “cause of
action”. An “action” is a lawsuit. The main causes of action in tort are negligence, nuisance, trespass, civil
assault, and strict liability. A defendant can be sued in more than one cause of action in a single lawsuit.
There are three basis of liability in tort law. A person can do harm by way of their carelessness –
negligence. Second, a person can engage in an intentional harm such as assault. Note that assault can
simultaneously be a tort, and the victim can sue for damages to compensate for the harm, and a crime,
where the Crown prosecutes the wrongdoer, aiming for a penalty such as a fine or jail sentence. The civil
and criminal proceedings can go on in court rooms down the hall from each other (think O.J. Simpson).
We can tell that crime doesn’t pay because the overwhelming majority of criminals are not worth suing.
The third form of liability is “strict liability”. Be careful with the phrase “strict liability” as it is used to refer to
a cause of action as well as a type of regulatory offence. In strict liability as a cause of action, the
defendant is liable by virtue of harbouring a hazard that gets away (toxic material or animal) without any
finding of negligence.
The interaction between common law and statutory law can be complex. An area of common law can be
remedied by statutory reforms. This was the case with workers lawsuits in negligence against employers
in the 19th century. So many of these lawsuits failed to overcome existing legal defences that a scandal
arose and the governments of the day brought in statutory, no-fault compensation schemes and
prohibited most lawsuits. The law concerning the sale of goods has been modified in most common law
jurisdictions by inserting “implied warranties” in the sale of goods. Employment standards legislation sets
minimum standards for employment contracts. On the other hand, judges interpret statutes in the cases
they decide, so often statutory law cannot be completely understood without reading the relevant cases.
Using the Charter, as mentioned, a case can actually “destroy” a statute.
A person is directly “liable” under a statute or at common law if they have to take the consequences of
their own acts and omissions. However, the idea of “vicarious liability” is important, where one entity is
liable for the acts and omissions of another. Parents are vicariously liable for their children. For our
purposes, the employer’s vicarious liability for the acts and omissions of its employees is important – also
known as “respondeat superior”. The employer cannot say “sue the janitor, prosecute the janitor, not us”,
for the slippery floor and the fall. When it comes to corporations, they are deemed to be legal “persons”,
but as that is a legal fiction (and a useful one), corporations would never be liable for anything if they
weren’t vicariously liable for the acts and omissions of their employees. Some OHS statues have specific
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sections stating that employers are vicariously liable for their employees. There is an obvious limit to this
liability – the employer will not be liable if the employee was operating outside the scope of their
employment, ie “on a lark of their own”. Drawing the line has become very difficult with respect to violence
in the workplace.
A “remedy” is what the plaintiff/applicant/prosecutor is asking the court for. In contract law, the main
remedy is called “damages” – money – to put the plaintiff where he or she would be if the other side had
fulfilled the contract. A plaintiff may also ask for “specific performance”, meaning that the court will order
the defendant to actually behave in a way that carries out the contract – e.g. hand over the goods. At
common law the employer cannot get specific performance to enforce a contract of employment if it
means ordering the employee to do something life-threatening.
In tort law, the main remedy is also damages. But often, particularly for the tort of nuisance, the plaintiff
wants the behaviour stopped or modified. A “prohibitory injunction” is an order by the court for the
defendant to stop the activity. A “mandatory injunction” is an order for the defendant to take certain steps
to control the problem. A “declaration” is a remedy whereby the court declares the status of something –
someone is the “owner” of the property for example (or the father of the child).
Contract Law
An important area of the common law is the law of contracts. A contract is a set of mutual promises
enforceable at law. Some promises are not enforceable, they are gratuitous. A one-sided promise is not a
contract. A contract is something for something. A contract requires competent parties, a meeting of
minds as to the content of the agreement, “consideration” (the something for the something), and a
subject matter that is not illegal.
Contract law is important in the area of products liability, which is discussed elsewhere.
Most workers’ compensation Acts will say that workers cannot contractually waive their rights to
compensation, so a contract that purports to opt out of workers’ compensation is an “illegal contract”. As a
general rule, one cannot use a contract to escape a statute, unless the statute says you can.
You can, however, go beyond the statute’s requirements in a contract. Employment contracts cannot go
below the OHS legislation, but they can go beyond it. In non-unionized workplaces, each worker has his
or her own contract of employment. It is a “contract of service”. The employer is buying the employee’s
time. A “contract for service” is the phrase for the relationship with a contractor who is not an employee.
In a unionized workplace, the labour relations legislation allows for a special kind of contract called a
“collective agreement”. There are two parties, the employer and all workers collectively, as represented
by the union. The collective agreement cannot contain terms in violation of statutes such as the OHS
legislation, unless the OHS legislation allows it. The Canada Labour Code, Part II has a number of
sections where it is stated that the collective agreement can differ from the Act.
An “employer” can be a number of different entities. An unincorporated business might be run by a “sole
proprietor”, a human being who is personally the employer. A partnership consists of the partners. A
partnership is not a corporation. A partnership can be the employer, but the partners are individually
responsible for the partnership. A corporation is a legal entity distinct from its owners, the shareholders.
The shareholders are at risk only for what they have invested in the corporation. That is, the corporation’s
liability is not their own personal liability.
A corporation can sue, be sued, be prosecuted and so on. As a legal fiction, a corporation does not have
a “mind” that can be engaged in a crime, so how can corporations be found liable for crimes? We add
legal fiction to legal fiction to make this possible. Unincorporated groups such as clubs and associations
are not legal persons and historically could not be employers. Bill C-45 which amended the Criminal Code
to make it easier to convict corporations for crimes does allow for the prosecution of such un-incorporated
groups as “organizations”.
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In the UK, the law of employment is called the “law of master and servant”, for historical reasons. This
usage is becoming less common in Canada.
Public Law and Private Law

Law can be divided into two broad types – “public law” and “private law”. Public law is concerned with the
legal system itself and, most importantly, with the relations between the State and the individual.
Constitutional law is the quintessential member of this group. Fundamental human rights are also in this
arena. Criminal law and regulatory law are also about duties that we all must comply with and our failure
to do so is a harm to the public at large, or the general welfare.
“Private law” refers to law that is primarily about the relations between private individuals. Contract law is
the best example. The content of the contract is up to the parties to the contract. Tort law is a second
example, where a plaintiff may sue the defendant for a wrong that the defendant has done him or her.
Both statutes and cases may be public or private law.
One result of the distinction between public law and private law is the difference in the “standard of proof”.
The “standard of proof” for a prosecution (public law) is “proof beyond a reasonable doubt” ... a standard
of proof that is very high, bordering on 99% certainty. The Crown has this high hurdle to jump over
because all the resources of the State are potentially on the prosecutor’s side. In a civil lawsuit (contract
or tort – private law), the standard of proof is “on a balance of probabilities”; the scales need only tip
slightly in one direction. This is sometimes called 51% certainty.
Administrative or Regulatory Law

An important type of law for the OHS professional is “administrative law”. This is concerned with the
decisions of administrative Boards and Tribunals. Workers’ compensation boards are some of the earliest
administrative boards in the country. Many date back almost 100 years. The purpose was to create a
process for settling specific types of disputes using panels of expert decision-makers in a relatively
informal atmosphere. An important historical concern was to shield these Boards and Tribunals from the
courts, staffed by generalists who might not have been sympathetic to the purpose of the regulatory
regime.
Administrative Boards and Tribunals are created by statute, and there are often one or more sections in
the statute that can be called “finality clauses” or “privative clauses”. These clauses state that a Board’s
decision is final and cannot be further appealed. A “privative clause” is usually more lengthy, detailing the
types of remedies that one cannot seek from the courts (mandamus, quo warranto – we won’t get into the
details of these), and specifically use the phrase “no judicial review” – no review by the judges. In spite of
such privative clauses, an unreasonable decision by a Board or one that violates fundamental rights will
still be heard by courts regardless of such clauses. Many statutes will specifically allow for appeals from
Boards to courts.
There are many types of administrative Boards and Tribunals that the CRSP will encounter –
environmental appeal boards, labour relations boards, human rights commissions and so on. Such
Boards tend to develop their own procedures and those appearing before them must become familiar with
their finer points. These days most Boards will have their procedures available on their websites.
Many lawyers refer to all of “regulatory law” as “administrative law”. This is due to lawyers’ interest in
appealing decisions of inspectors and others to Boards and Tribunals, appearing before such entities,
and then in the appeal of those decisions to the courts. This tends to ignore the vast world of regulatory
compliance that goes on under various regulatory regimes.
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Figure 3. Judicial review of decisions of administrative boards and tribunals.
A better perspective is to note that in public law, outside of constitutional law, there are two main types of
statutes/duties/offences – criminal and quasi-criminal. Quasi-criminal are what we call “regulatory”. The
OHS and environmental statutes are “quasi-criminal” or “regulatory”.
A true criminal statute may only be enacted by the federal legislature. The essence of criminal law is
serious penalties for serious harms and, most importantly, an element of mental wickedness as part of
the offence itself (called mens rea). Regulatory regimes (Acts plus regulations) are usually put in place to
deal with some set of societal problems – protecting the environment, protecting workers, protecting
consumers, etc.
One can spend most of one’s career developing the policies, programs and procedures to comply with
the standards in regulatory law with hardly ever seeing an inspector enforcing the regulatory regime or
attending at a Board or Tribunal hearing. It is best to use the phrase “administrative law” to refer to the
activities of Boards and Tribunals as a subset of the broader “regulatory law”.
Products Liability
The CRSP should possess a basic understanding of products liability as it relates to OHS.
1. Contract law. The purchaser is harmed by a product and sues the seller for breach of contract.
Both the purchaser and the seller are “parties to the contract” or “privy to the contract”. The
purpose of the remedy – the damage award – is to put the plaintiff/purchaser where he or she
would have been had the contract been fulfilled and the purchaser not been given a defective
product.
2. Tort law. The user of the product (whether purchaser or not) is harmed by the product and sues
the supplier in negligence. The purpose of the lawsuit is to compensate the successful plaintiff for
losses caused by the manufacturer’s carelessness – that is, to put the plaintiff back in the position
he or she was in before being harmed by the defendant.
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3. Regulatory law. The supplier is prosecuted by a government regulatory body for breach of a
statute that sets standards for the product in question. If convicted, the supplier pays a fine into
the government’s coffers, not into the pocket of the person harmed by the product (if any). The
purpose of the prosecution and penalty is “deterrence” – to motivate the supplier/defendant to a
higher level of conduct in the future.
In addition to the deterrent effect of regulatory law, civil lawsuits can also indirectly cause industry
practices to improve. The supplier of products may take steps to improve the products in order to avoid
civil liability by way of a lawsuit. A supplier who loses a lawsuit is “specifically deterred” from supplying
substandard products in the future. A supplier who observes some other supplier paying damages may
change its own ways to avoid being sued in the future—“general deterrence” or the “observer effect”.
Particularly dangerous types of products may simply become too expensive to make or distribute.
Lawsuits are primarily about compensation but may have prevention as a side effect.
There are many possible causes of accidents or exposures. The failure of a product is one category of
accident causation. The typical scenario would involve a “product” purchased by the employer, used by a
worker, and failing in a way that harmed the worker or co-worker. Almost any kind of product can fail and
cause an accident, for example:
 tools
 machines
 materials
 devices
 equipment
Products can also fail and cause an exposure to a health hazard; ventilation equipment for example.
Monitoring devices and personal protective devices can fail. Pumps, valves, containers and pipes can fail
and cause an environmental discharge. Just as the list of products that can fail is almost endless, so are
the categories of loss.
If an accident investigation reveals that a product was a causal factor in the accident, the employer
should be made aware of its right to sue the supplier. The CRSP cannot give an opinion about the
employer’s chances of success in such a lawsuit unless the CRSP is also a lawyer. The CRSP can,
however:
 identify products involved in accidents
 assess the degree to which a product contributed to an accident
 collect the relevant information about the supplier of the product
 assess the causal contribution to the accident of others (including the contribution of the
employer)
 assess the amount of the loss to the employer due to the accident
 assist the employer’s lawyer in assessing the prospect of lawsuit
 assist the employer’s lawyer as a witness in any possible lawsuit by the employer against the
supplier.
It is also the case that CRSPs may be involved in the flip side of products liability. They may, due to their
expertise in accident theory, hazard identification and control, ergonomics, etc be asked to help design
systems and processes that will reduce the likelihood their own employer will produce a defective
product. The CRSP will be aware that US product liability law is not the same as in Canada. First, the
Americans use “punitive damages” to a far greater extent that Canadians – damage awards that go
beyond compensation to “punish” the defendant. Second, some US jurisdictions rely on “strict liability”
rather than the negligence standard.
Products Liability in Contract

In our typical scenario, the worker who is harmed did not purchase the product and so did not have a
contract with the product’s supplier. The employer had a contract with the supplier. The injured worker
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can’t sue the supplier for breach of contract because there is no contract between worker and supplier.
There is no “privity of contract”. The employer can sue the supplier for breach of contract. There may be
property damage consequences of the accident that directly affect the employer, but the harms to the
worker are not losses that the employer can claim in a lawsuit for breach of contract.
The employer can sue the manufacturer of a defective product for property damage and business
interruption losses from an accident, as these are not losses covered by workers’ compensation.
Historically, only the parties to the contract could sue on the contract of purchase and sale – only they
had “privity of contract”. The person who might have been injured, but who did not buy the product, could
not sue on the contract, or at all. We will return to the issue of the worker’s ability to sue when we
examine the law of negligence.
Traditionally a purchaser was on his own in terms of merchantable quality. Under the doctrine of “caveat
emptor”, meaning “buyer beware”, the purchaser, before the sale, could inspect the product, “kick the
tires”, and determine if the product was acceptable because the buyer had little hope of suing for any
defect an observer could have spotted. That makes sense in an actual physical marketplace but is
problematic in modern times in virtual markets where products are bought unseen, at a distance. There is
no “tire kicking” on the Internet.
Then the common law was amended in Canadian jurisdictions (the common law is in the jurisdiction of
the provinces) by statutes usually called “Sale of Goods Acts”. These almost invariably added two
“implied warranties” to the contract:
1. Implied warranty of "reasonable fitness for the purpose".
2. Implied warranty of "merchantable quality".
The implied warranties in Sale of Good Acts facilitate confidence in commerce by setting a minimum
standard of quality.
A “warranty” is a promise or guarantee. The supplier of a product can either expressly or impliedly warrant
that a product will do, or not do, certain things, or that it will have, or not have, certain properties.
A contract can contain written express warranties about the performance or characteristics of the product.
In a verbal contract, the seller can make express warranties, although this would be uncommon in routine
sales.
An implied warranty is a promise or guarantee the vendor did not make but is deemed to have made by
virtue of a statute. The most important example is the Sale of Goods Acts where the Act deems contracts
to include certain warranties.
It’s not in a seller’s interest to make a lot of express warranties about its product. Express warranties
become very important for products designed for a particular workplace. The purchaser has specific
needs and they will be expressed in the contract as specific promises of the seller.
The CRSP may be involved in the wording of express warranties where they have an OHS impact. The
CRSP may also be involved when the question arises whether express warranties have been fulfilled, or
what the consequences of non-compliance with an express warranty are. The CRSP may assist in a
determination of compliance with implied warranties.
The wording of the implied warranties is very similar across Canada. The Manitoba Sale of Goods Act
states:
Implied conditions as to quality or fitness

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16 Subject to the provisions of this Act and of any statute in that behalf, there is
no implied warranty or condition as to the quality or fitness for any particular
purpose of goods supplied under a contract of sale, except as follows,
(a) where the buyer, expressly or by implication, makes known to the seller the
particular purpose for which the goods are required so as to show that the buyer
relies on the seller's skill or judgment, and the goods are of a description which
it is in the course of the seller's business to supply (whether he is the
manufacturer or not), there is an implied condition that the goods shall be
reasonably fit for the purpose: Provided that in the case of a contract for the
sale of a specified article under its patent or other trade name, there is no
implied condition as to its fitness for any particular purpose,
(b) where goods are bought by description from the seller who deals in goods of
that description (whether he is the manufacturer or not), there is an implied
condition that the goods shall be of merchantable quality: Provided that if
the buyer has examined the goods, there shall be no implied condition as
regards defects which the examination ought to have revealed,
(c) an implied warranty or condition as to quality or fitness for a particular
purpose may be annexed by the usage of trade,
(d) an express warranty or condition does not negative a warranty or condition
implied by this Act unless inconsistent therewith.
In British Columbia, the Sale of Goods Act states:
Implied conditions as to quality or fitness

18 Subject to this and any other Act, there is no implied warranty or condition as
to the quality or fitness for any particular purpose of goods supplied under a
contract of sale or lease, except as follows:
(a) if the buyer or lessee, expressly or by implication, makes known to the seller
or lessor the particular purpose for which the goods are required, so as to show
that the buyer or lessee relies on the seller's or lessor's skill or judgment, and
the goods are of a description that it is in the course of the seller's or lessor's
business to supply, whether the seller or lessor is the manufacturer or not,
there is an implied condition that the goods are reasonably fit for that
purpose; except that in the case of a contract for the sale or lease of a
specified article under its patent or other trade name, there is no implied
condition as to its fitness for any particular purpose;
(b) if goods are bought by description from a seller or lessor who deals in goods
of that description, whether the seller or lessor is the manufacturer or not, there
is an implied condition that the goods are of merchantable quality; but if
the buyer or lessee has examined the goods there is no implied condition as
regards defects that the examination ought to have revealed;
(c) there is an implied condition that the goods will be durable for a reasonable
period of time having regard to the use to which they would normally be put and
to all the surrounding circumstances of the sale or lease;
(d) an implied warranty or condition as to quality or fitness for a particular
purpose may be annexed by the usage of trade;
(e) an express warranty or condition does not negative a warranty or condition
implied by this Act unless inconsistent with it.
If the metal bender couldn’t bend metal, it wasn’t “fit for the purpose”. If the machine has used parts when
advertised as new, then it wasn’t of “merchantable quality”. There were and are problems:
1. Disclaimers may over-ride warranties.
2. Warranties may be void if conditions are not met.
3. Injured person has to be the one who entered the contract.
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The CRSP may be involved in showing that the consequences of a product not being of merchantable
quality caused an accident as well as the degrees of loss. Similarly for a situation where products turned
out not to be fit for the purpose—it didn’t do what such products normally do. How did this inadequacy
cause an accident and what are the losses?
The CRSP will be experienced in setting out the losses associated with accidents. CRSPs do “full cost
accounting” of accidents under “loss control” so as to be able to show senior people that the full cost of
accidents is many times the cost of the insured direct costs of accidents. These skills can be applied to
the tabulation of losses required in lawsuits.
In a lawsuit based on breach of contract, the employer’s losses may involve:

 property damage
 production interruption
 environmental harm
 harm to visitors for whom the employer is responsible.
The employer cannot sue for the losses incurred by an employee. The employer is not directly
responsible for losses to employees. Employees’ losses are covered by workers’ compensation
legislation.
To reiterate, the worker cannot sue the employer for any losses; the worker must take workers’
compensation.
However, the supplier of the product may not be covered by workers’ compensation. The supplier may be
what is called a “third party”. In such case, the worker can elect to sue the supplier, or take workers
compensation.
However, the worker cannot sue on the contract only under the law of negligence.
Products Liability in Negligence
In the first half of the 20th century, the common law changed to allow the ultimate user of the product to
sue in negligence. Prior to those decisions, there was said to be no duty in the law of negligence on the
part of the manufacturer towards the ultimate non-purchasing user. The famous case setting precedent
was Donoghue and Stevenson decided by the House of Lords in the UK in 1932. The case involved a
woman who became traumatized after drinking a bottle of ginger ale that had a decomposing snail in the
bottom. She hadn’t bought the bottle but received it from her friend. The injured woman didn’t have
“privity of contract” and couldn’t sue. The court “discovered” that manufacturers have a duty to take
reasonable care towards the ultimate user. Lord Atkin said:
"A manufacturer of products, which he sells in such a form as to show that he intends
them to reach the ultimate consumer in the form in which they left him with no reasonable
possibility of intermediate examination, and with the knowledge that the absence of
reasonable care in the preparation or putting up of the products will result in an injury to
the consumer's life or property, owes a duty to the consumer to take that reasonable
care..."
Today, we say that the manufacturer has a duty of care that includes:
 design of the product
 manufacture
 packaging
 labelling
 instructions
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 on-going warnings or recall

This is highly relevant for worker “third party” lawsuits as well as the employer itself.
A product can cause an accident or exposure because:

 the manufacturer did not design the product well
 the product was well designed but the manufacturer produces it with defects –substandard
processes or components
 the manufacturer did not properly advise on how to:
o install the product
o assemble the product
o maintain the product
o instruct the operator how to use the product.
Is the law of products liability restricted to the fault of the manufacturer? Considering how many ways a
product can cause an accident and how many different entities are involved in the flow of products from
manufacturer to user, then answer would have to be “no”. Who can be sued in negligence?
Manufacturer
The classic scenario in products liability law involves the manufacturer of the product as the defendant.
The manufacturer could be foreign or domestic.
Importer
The foreign manufacturer may also be the importer, or have a Canadian subsidiary that is the importer.
There are companies who buy from foreign manufacturers and bring the product into Canada as the
importer and then sell to a wholesaler, retailer or the public. A wholesaler or retailer can be the importer.
Secondary and Tertiary Manufacturers

A secondary manufacturer could incorporate a defective product into its own product and would then, in
turn, be passing on a defective product to the ultimate user.
Wholesaler
The wholesaler buys the product from a manufacturer (whether foreign, domestic, primary or secondary)
or an importer. The wholesaler then sells to the retailer. Despite what the ads say, “direct from the
wholesaler” means you are buying from a retailer by definition.
Distributor
A distributor doesn’t buy the product but is paid to distribute the product from any of the previous entities
to the retailer.
Retailer
A large retailer could be a manufacturer or an importer. A retailer can put its own packaging and name on
a product made for it by a manufacturer. Or the retailer could simply buy a product from a manufacturer,
importer or wholesaler.
Assembler
A company can assemble a product for the retailer or the purchaser for a fee. A retailer can also be the
assembler before or after it sells the product.
Installer
The installer is on the purchaser’s or user’s premises to install the product (with or without assembly). Any
of the above entities could be the installer, but a company could do nothing except installation of a
product for a fee.
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Inspectors
A company or an individual could carry on the business of inspecting a product for a fee. The inspection
could take place at any point along the chain of distribution, even after installation or the commencement
of use by the purchaser or non-purchasing user. A government inspector could be liable in some cases
(although it would almost certainly be the inspector’s employer the Crown who would be potentially
liable). A person who undertakes to inspect a product without charging a fee could, in principle, be liable
to some degree.
Certifiers
An inspector could also be a certifier. A certifier is a person such as an architect (the product is
incorporated into a building) or an engineer who certifies that a product meets a standard (or that it has
been correctly assembled or installed).
Purchaser
A purchaser of a product who passes it on to a non-purchasing user could also be liable to some degree.
Maintenance
A purchaser or user could do their own maintenance or they could hire someone to do it for it for them for
a fee.
Instructor
A person could instruct the purchaser or user on how to assemble, install, maintain or use the product.
User
The user of the product, whether the purchaser or not, could also be at fault to some degree for causing
an accident with a product. This would be contributory negligence and would decrease the amount of
money that the user/plaintiff could ultimately recover from one or more of the entities above. Then again,
the user may not be hurt but may have harmed a non-user while using the product.
Any of the above entities could carry out their activity in a careless way and cause harm to others. In
addition to our initial list of ways the manufacturer could be careless we could include careless:
 handling
 transporting
 storage
 re-packaging
 re-labelling
 instruction
 assembly
 installation
 inspection
 certification
 maintenance
 warnings
 descriptions
 using
Many of these careless activities could be done by more than one entity.
Consider also who might be harmed. In products liability law, when it expanded into negligence, the
concern was for the user – typically someone who received the product from the purchaser. A worker
would certainly be the user in many cases. Think, however, of all the workers who would be handling the
product along the chain of distribution. A duty of care would be owed to any person who could
foreseeably be performing a function with regard to the product.
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A CRSP could be involved at any of the stages of the product’s life. The CRSP could be working for a
potential plaintiff or a potential defendant. The CRSP could be the plaintiff or the defendant at various
stages.
Liability Related to Property Ownership

The CRSP should possess a basic understanding of liability related to property ownership.
In a very few workplaces where workers are not under a workers’ compensation Act, workers are not
prohibited from suing their employer. In such a rare case, there is a possibility that a worker injured on the
job could sue the employer under the law of occupiers’ liability.
A similar scenario is where a contractor’s worker enters the workplace. Normally a non-employee who is
a worker will be prohibited from suing because of workers’ compensation laws. In rare circumstances
such an entering worker will not be under workers’ compensation legislation and can sue the occupant if
an accident occurs.
In another scenario, the CRSP could be involved where a worker from the CRSP’s workplace travels
outside the workplace and has an accident. If the place where the worker is injured is not under workers’
compensation legislation then the worker may have the option of either taking workers’ compensation
benefits or suing the occupant under the law of occupier’s liability.
So far we have mentioned only “accidents”. The law of occupiers’ liability, in principle, covers any type of
harm to the entrant by any means. The occupier may be liable to the entrant for intentional violence done
to the entrant. Although a relatively rare occurrence, an occupier may be liable for a health hazard
exposure to the entrant (rare because most exposures have to be over a long period of time to cause an
effect). As mentioned, the lawsuit may not be about harm to the person at all, but be a lawsuit based on
damage to the entrant’s property.
The CRSP who understands the factors involved in determining what reasonable precautions should be
taken in the circumstances for OHS due diligence will have little difficulty in determining what reasonable
precautions should be taken to protect entrants under occupiers’ liability law. The overlap between due
diligence for OHS and due diligence for occupiers’ liability should be very large in most workplaces. Many
of the CRSP’s techniques of hazard identification and risk analysis can be applied for the purpose of
protecting entrants. Many accidents involving entrants are “slip and fall” accidents. The causes of slip and
fall accidents in the workplace are often the same whether the victim is an entrant or a worker. However,
the frequency of inspections in a grocery store for the safety of customers may be higher than the
frequency of inspections one would do for employees. This would be “reasonable” considering the
characteristics and demographics of customers relative to employees.
A less important area of liability is in the law of trespass. In environmental law we are concerned with
“trespass” in the sense of material (dust, waste) invading a neighbour’s property. Here we are referring to
trespass in the traditional sense – trespass by people.
There are two scenarios here. The employer’s workers may enter onto the property of others in
circumstances where they may be trespassing. This will be less important if the workplace is a
manufacturing facility where almost all workers spend almost all of their working day. It will be much more
important if the employer is a utility, a transport/courier company, a consulting business, a municipality, or
an employer of government inspectors of one sort or the other.
Second, the CRSP should be aware of the problems that trespassers into the CRSP’s workplace can
pose. The liability of the employer as an occupier is covered under occupiers’ liability law. The liability
issue here is the liability of the trespasser for harm done to the CRSP’s employer or employees while
trespassing. The legal liability of the trespasser is less important than the:
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 recognition of the threats trespassers pose to OHS, property and the environment
 proper means of warning potential trespassers away
 issues involved in removing trespassers from the premises
At common law, the occupier of premises owes a duty to take reasonable care for the entrant and his or
her possessions. Today, in most jurisdictions, the common law has been reformed by a provincial
“Occupiers’ Liability Act”. If the entrant is a worker covered by workers’ compensation, then there will be
no lawsuit.
However, many workplaces have students, patients, customers and tourists in them, who are not covered
(usually) by workers’ compensation. These people can sue if they trip and fall or have some other type of
accident. It will usually be part of the job of the CRSP to assist the organization with reducing risk towards
visitors. The “visitor safety program” may be part of an OHS management system. In workplaces such as
the retail sector, hospitals, cultural and entertainment centres, school boards and universities it is not
uncommon to rename the OHS Co-ordinator as the “Risk Manager” and the OHS management system as
the “risk management system”. The due diligence steps the CRSP assists with for worker safety will
overlap with visitor safety, but there may be extra activities necessary for visitors. The CRSP must be
able to work through due diligence for visitors.
If it is your worker who has an accident as an entrant outside your workplace, the worker may have an
election to either take workers’ compensation or to sue. If the worker chooses to take benefits, the
workers’ compensation authority may be “subrogated” to the worker’s common law rights and may sue
the occupier to obtain reimbursement for the benefits paid to the worker.
The law of occupiers’ liability is constitutionally within the jurisdiction of the provinces. This means that the
details will differ across the country, particularly where the common law has been modified or replaced by
a provincial occupiers’ liability statute. There is no federal occupiers’ liability regime. A federal workplace
will be under the law of occupiers’ liability of the province it is located in. A CRSP who manages OHS
across the country would have to become familiar with the law of occupiers’ liability in each jurisdiction in
which his or her organization had a workplace in which non-workers entered.
It is one of the main principles of workers’ compensation systems in Canada that a worker and his or her
family cannot sue the employer or co-worker for compensation for an accident at work. Instead benefits
under the no-fault insurance scheme of the workers’ compensation legislation are available.
A province’s Occupiers Liability Act may also have an express provision barring workers from using the
Act. For example, the Ontario OLA states:
nothing in this Act shall be construed to affect the rights, duties, and liabilities resulting from an
employer and employee relationship where it exists
This means the OLA general duty clause does not apply to the employer-employee relationship. If an
employee wasn’t prevented from suing the employer by a workers compensation Act then the employee
would have to rely on the common law tort of negligence.
Generally a worker is not covered by workers compensation legislation on the way to and from work. In
most cases, particularly after hours, off the worksite and at a company social event, the worker is not
covered either. Accidents at, or going to or from (particularly from) the social event may be the basis of a
lawsuit in negligence by the worker (and possibly the family).
If there is an insufficient employment relationship for the workers’ compensation legislation to apply, there
will likely be an insufficient employment relationship for the OLA prohibition to apply either. Insofar as the
employer is the “occupant” of the premises used for the social event the employee could rely on the
general duty clause in the OLA. If not, a lawsuit based on the common law may still be possible.
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A collective agreement in effect in a unionized workplace may prevent a worker from suing the employer.
If the collective agreement has provisions dealing with workplace injuries and a grievance process is
available, then a court would likely not have jurisdiction to hear the lawsuit.
The common law rules for occupiers’ liability became very complex, confusing and inconsistent by the
1970s. That is why provincial occupiers’ liability legislation was enacted. Using the Ontario Act as an
example:
Common law duty of care superseded

2. Subject to section 9, this Act applies in place of the rules of the common law
that determine the care that the occupier of premises at common law is required
to show for the purpose of determining the occupier’s liability in law in respect of
dangers to persons entering on the premises or the property brought on the
premises by those persons.
This is analogous to what happened in Canada in the early 1900s when workers compensation Acts
(virtually) eliminated an area of the common law (workers suing employers).
The relevance of occupiers’ liability for the CRSP is not about workers’ safety but it is about the safety of
non-workers. Occupiers’ liability will be of greatest importance for workplaces in which a large number of
non-workers are present. An incomplete list of such workplaces would include:
 the retail sector (stores, shops)
 hospitals
 hotels
 schools, colleges and universities
 offices serving the public
 residential institutions (homes for the aged)
 municipalities
 entertainment and tourism sectors
Most of these organizations would not hire one person to be the OHS coordinator and then another to be
the “occupiers’ liability coordinator”. In workplaces with members of the public entering as:
 customers
 patients
 students
 guests
 tourists
 travelers, etc.
…the CRSP would most likely have responsibilities for occupiers’ liability in addition to the usual OHS
responsibilities.
It is not uncommon to change terminology so that the OHS Coordinator or Manager becomes the Risk
Manager and the OHS Management System becomes the Risk Management System. The alternative is
to modify the OHS MS so as to have a Visitor Safety Program (or similar terminology).
The CLC has specific duties for the employer regarding visitors to the workplace in s.125(1):
(l) provide every person granted access to the work place by the
employer with prescribed safety materials, equipment, devices and
clothing;
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(w) ensure that every person granted access to the work place by the
employer is familiar with and uses in the prescribed circumstances and
manner all prescribed safety materials, equipment, devices and
clothing;
(y) ensure that the activities of every person granted access to the work
place do not endanger the health and safety of employees;
(z.14) take all reasonable care to ensure that all of the persons granted
access to the work place, other than the employer's employees, are
informed of every known or foreseeable health or safety hazard to which
they are likely to be exposed in the work place;
“Occupier”
In every province there will be key terms that should be understood. An obvious one is “occupier”. In
Ontario, “occupier” is defined as:
“occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of
premises or the activities there carried on, or control over persons allowed to
enter the premises,
despite the fact that there is more than one occupier of the same premises;
In Alberta, for example:

(c) “occupier” means
(i) a person who is in physical possession of premises, or
(ii) a person who has responsibility for, and control over, the condition of
premises, the activities conducted on those premises and the persons allowed
to enter those premises,
and for the purposes of this Act, there may be more than one occupier of the
same premises;
The employer, being in charge of a workplace, would almost always be an “occupier”. There can be more
than one “occupier” at the same time. The commercial landlord, the employer operating a retail store, and
the manager of that store, could all be “occupiers” simultaneously.
“Premises”
Another key term is “premises”. The general duty of care applies to entrants onto “premises”, which are
defined in the Ontario Act to include:
 lands
 structures
 ships
 vessels
 trailers, and other portable structures
 trains and railway cars
 vehicles
 aircraft
In Ontario, trains, vehicles and aircraft are not “premises” when they are in operation. “Premises” have
been held in the case law to include elevators, scaffolding and streetcars. Roads, highways and
sidewalks if occupied by the provincial Crown or a municipality are not “premises” in Ontario and the OLA
general duty does not apply. The common law of negligence could apply instead.
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In Alberta:
(d) “premises” includes
(i) staging, scaffolding and similar structures erected on land whether affixed to
the land or not,
(ii) poles, standards, pylons and wires used for the purpose of transmission of
electric power or communications or transportation of passengers, whether or
not they are used in conjunction with the supporting land,
(iii) railway locomotives and railway cars,
(iv) ships, and
(v) trailers used for, or designed for use as, residences, shelters or offices,
but does not include aircraft, motor vehicles or other vehicles or vessels except
those mentioned in subclauses (iii) and (iv) or any portable derrick or other
equipment or movable things except those mentioned in subclauses (i) and (v);
The Duty of Care Toward Entrants

One would have to check the OLA of one’s own province or territory for the details, but using Ontario as
an example, the “occupier” owes a duty of care to the “entrant” (the customer, patient, student, guest,
etc.) The occupier’s duty of care is found in s.3:
Occupier’s duty
3.(1)An occupier of premises owes a duty to take such care as in all the
circumstances of the case is reasonable to see that persons entering on the
premises, and the property brought on the premises by those persons are
reasonably safe while on the premises.
(2)The duty of care provided for in subsection (1) applies whether the danger is
caused by the condition of the premises or by an activity carried on on the
premises.
In Alberta, for comparison:
Duty of care to visitors

5. An occupier of premises owes a duty to every visitor on the occupier’s
premises to take such care as in all the circumstances of the case is reasonable
to see that the visitor will be reasonably safe in using the premises for the
purposes for which the visitor is invited or permitted by the occupier to be there
or is permitted by law to be there.
When common duty of care applies
6. The common duty of care applies in relation to
(a) the condition of the premises,
(b) activities on the premises, and
(c) the conduct of third parties on the premises.
Nova Scotia has a duty clause that is identical to Ontario’s s.3(1), but in addition sets out some factors to
consider:
4(3) Without restricting the generality of subsection (1), in determining whether
the duty of care created by subsection (1) has been discharged, consideration
shall be given to
(a) the knowledge that the occupier has or ought to have of the likelihood of
persons or property being on the premises;
(b) the circumstances of the entry into the premises;
(c) the age of the person entering the premises;
(d) the ability of the person entering the premises to appreciate the danger;
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(e) the effort made by the occupier to give warning of the danger concerned or
to discourage persons from incurring the risk; and
(f) whether the risk is one against which, in all the circumstances of the case,
the occupier may reasonably be expected to offer some protection.
The CRSP will see the similarities between the employer’s general duty clause in an OHS Act and a
general duty in an Occupiers’ Liability Act.
Ontario OHSA s.25(2)(h), for example:
The employer…shall take every precaution reasonable in the circumstances for

the protection of a worker.
Both general duties are statutory versions of the general duty of care owed at common law in the tort of
negligence.
The definition of “occupier” will differ from province to province. Alberta, for example, has a narrow
definition as its OLA Act requires that all of the elements of an “occupier” in the Ontario definition would
have to apply simultaneously to a person for that person to be an “occupier”, while Ontario requires only
one of the elements to be present.
If there are several entities that meet the definition of “occupier” in a particular case involving an accident
to an entrant they will likely be liable for varying proportions of the successful plaintiff’s damages. A
commercial landlord 20% at fault for the accident would be liable for 20% of the plaintiff’s damages ($).
Liability for occupiers has been based on situations such as:

 salting and sanding icy surfaces
 duty to inspect premises (which increases with the age of the premises)
 duty to warn visitors of particular hazards but not of obvious dangers
 the more precise, frequent and reliable weather forecasts, the higher the standard of salting and
sanding will be
 a lack of security cameras
 the lack of presence-sensing devices for automatic doors
 a device for sending a “distress signal” for an employee working alone at night and at risk of
assault
 providing alcohol for guests
 sponsoring sports and games
 a greater duty of care may apply when children may be entrants since they will not be protected
by warnings as adults might be. It is reasonable to foresee that children will engage in hazardous
acts that adults would be unlikely to engage in
 a greater duty of care may apply if the premises or something on the premises (object or activity)
would attract children to enter
 a greater duty of care may apply if it’s foreseeable that elderly or disabled people may enter
In Ontario, the occupier can:
 restrict
 modify, or
 exclude…
… its duty of care. This is quite unlike the employer’s duty of care in OHS legislation. The occupier can
reduce (or eliminate) its duty of care by:
 warning
 notice, or
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 agreement
Any such restrictions on its duty of care must be brought to the attention of potential entrants via
“reasonable steps”.
Lower Duty of Care
The details will differ from province to province but in Ontario occupiers will be held to a lower standard of
care for certain persons such as:
 trespassers, or
 criminals
A lower duty of care may apply to entrants using certain types of lands such as:
 utility corridors
 unopened road allowances
 marked private roads
 marked recreational trails
 certain rural properties
Common Fact Situations
Here are some further situations that have been the subject of occupier’s liability lawsuits:
 inadequate lighting
 rotting, unsecured railings
 wet floors from floor washing
 slippery material on floors (fruits and vegetables on the floors of grocery stores)
 snow and ice not cleared
 intoxicated persons not barred from certain activities
 inspections of floors not done according to schedule
 floor sweeping not done according to schedule
 “wet floor” sign not posted as required
 not complying with occupier’s own policy on filling in depressions on walking surfaces
 failure to repair parking lot surface
Privacy Law
An initial distinction is between privacy laws that are aimed at governments and privacy laws that cover
the private sector. Governments require by law that individuals provide large amounts of personal
information to the government. Obvious examples are tax laws, health insurance, drivers’ licenses and so
on. Today there are many more instances than even a few years ago where a government permit or
licence is needed to carry on an activity, which inevitably leads to personal information being collected
and stored. Since individuals have no choice about whether to provide information, or how much to
provide, many privacy laws are for the purpose of setting high standards for how governments handle
such information.
There are also privacy laws that focus on relations in the private sector. A major area of concern is
medical records. This can be relevant in occupational hygiene practice and in modified work programs.
Health care professionals may have specific duties both legal and ethical regarding the personal
information they collect and store. Also important in the workplace are laws regarding confidential
business information. The CRSP may become privy to confidential information about processes,
ingredients and equipment as well as client and supplier lists. Often valuable business information is not
of the type that can be protected through patent laws.
Of particular note are provisions in OHS legislation concerning confidentiality. Typically those who come
to possess information through their role in OHS legislation are required to use that information solely for
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purposes anticipated by the legislation. These provisions cover OHS professionals acting as government
agents as well as those in the workplace.
OHS Implications of Subsidiary Provincial and Territorial Legislation

The OHS prevention legislation in a jurisdiction will not cover all of the legal issues that the CRSP should
be familiar with. Provincial and territorial jurisdictions cover many subjects not under federal control. The
details could not fairly be the subject of a national CRSP examination. Hence, we are limited for practical
reasons to the very general issues raised by collateral areas of law.
Understand the following terms and phrases:
inquests coroner coroner’s jury

employment law employment standards employment contract
labour law collective bargaining bargaining unit
certification of union managerial responsibility collective agreement
union grievance arbitrator
arbitration administrative tribunal labour relations
adverse effect discrimination human rights legislation duty to accommodate
undue hardship discrimination licence
prohibited grounds of discrimination permit
public health environmental health public health inspector
While the details won’t be on the CRSP exam, the CRSP will understand legislation (if relevant to his or
her work place) regarding:
 fire codes
 electrical codes
 liquid fuel codes
 propane codes
 elevators and elevating devices
 anti-smoking
 local public health requirements
 labour relations
 employment standards
 pesticide licencing, permitting, handling
 farm safety (depending on whether it is separate from OHS generally)
 coroners’ inquest (often called “fatal inquiries”)
OHS Implications of Subsidiary Federal Legislation

As was the case for subsidiary provincial/territorial legislation, there are Acts and regulations in the
federal jurisdiction of a secondary nature compared with the Canada Labour Code, Part II and
regulations. Some of these federal Acts and regulations were mentioned earlier regarding WHMIS – the
non-WHMIS labelling systems. Since these federal Acts and regulations apply across the country, the
CRSP should be familiar with them, whether they apply solely to federally regulated workplaces or to all
workplaces.
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Canada Gazette SOR, Statutory Orders and Regulations

Revised Statutes of Canada Bona fide occupational qualification
Canadian Human Rights Commission
CEPA GECA
National Fire Code National Building Code
Criminal Code of Canada criminal law
criminal negligence criminal offence
criminal onus mens rea
actus reus bodily harm
wantonness wilfully
federal Federal court - Appeal division
Federal court - Trial division federal work, undertaking or business
Canadian Human Rights Act (CHRA)

The CHRA is not the same thing as the Charter. The CHRA contains few “rights and freedoms” –
essentially equality rights; the right to be free from discrimination. It is not a constitutional document. It
applies to the federal sector, both public and private entities. It is analogous to a provincial human rights
code. The list of workplaces to which the Canada Labour Code, Part II applies is virtually the same list of
workplaces to which the CHRA applies. Hence, if a workplace is under a provincial OHS Act, it is almost
certain that it is not under the CHRA.
The CHRA creates the Canadian Human Rights Commission and a quasi-judicial body known as the
Human Rights Tribunal Panel.
The proscribed grounds of discrimination under the CHRA are as follows:
3. (1) For all purposes of this Act, race, national or ethnic origin, colour, religion, age, sex,
marital status, family status, disability and conviction for which a pardon has been
granted are prohibited grounds of discrimination.
The CHRA applies to a number of areas; the one of most concern to us is the workplace. The central
provision is s.7:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an

employee, on a prohibited ground of discrimination.
An employer need not have intention to discriminate. It is deemed to be a discriminatory practice is a

policy or practice has a discriminatory effect:
Discriminatory policy or practice

10. It is a discriminatory practice for an employer, employee organization or organization
of employers
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion,

training, apprenticeship, transfer or any other matter relating to employment or
prospective employment, that deprives or tends to deprive an individual or class
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of individuals of any employment opportunities on a prohibited ground of

discrimination.
Definitions
25. In this Act,
"disability" means any previous or existing mental or physical disability and includes
disfigurement and previous or existing dependence on alcohol or a drug.
The difference between section 7 and section 10 would be as follows. If an employer had a policy an
express rule “that no diabetics or epileptics” need apply because of a concern that such a worker might
become unconscious and pose a safety concern, that would be a potential breach of section 7 and the
prohibited ground would be “disability”. If, however, the employer had a rule that said “all workers must
wear hardhats” and a worker who had to wear a head covering for religious reasons and so could not
wear a hardhat, the dismissal of that worker would be the unintended side effect of a policy. It would be a
discriminatory practice and the prohibited ground would be “religion”.
15. It is not a discriminatory practice if

(a) any refusal, exclusion, expulsion, suspension, limitation, specification or
preference in relation to any employment is established by an employer to be
based on a bona fide occupational requirement;
The critical question then would be whether the hardhat rule is a “bona fide occupational requirement”
(BFOR).
The Supreme Court of Canada in the Central Alberta Dairy Pool case, has added something to the
analysis by saying:
Where a rule has an adverse discriminatory effect, an employer must show that it could
not have accommodated an employee adversely affected without undue hardship.
This brings the CHRA into alignment with most provincial human rights codes. The employer cannot
come to a conclusion about the hardhat rule as a BFOR unless the employer has gone through the
process of “accommodation”. The employer should ask questions such as:
 Is the hardhat truly necessary in all locations and specifically where the aggrieved worker is
located?
 Can the overhead hazard be eliminated by some other means?
 Can a screening or other protective covering be built or placed over the worker’s workstation so
that the worker is protected from overhead hazards without the need for a hardhat?
 Do the religious practices allow a smaller head covering that is compatible with a hardhat?
 Can some form of protective head covering other than a hardhat, but equivalent to it, be acquired
or fabricated so that the worker may still wear the religious head covering under it?
In the case of the rule banning diabetics and epileptics, the employer would have to show that, instead of
the blanket rule, it considered each applicant as an individual and considered whether the applicant’s
personal medical history made him or her a significant risk. The onus is on the employer to be able to
provide proof that an alleged BFOR is a BFOR.
The most important prohibited ground is “disability” in terms of the frequency of cases. In the
overwhelming majority of such cases some effort and money applied to the process of accommodation
will allow the employer to “engineer” a way out of conflict between human rights and OHS.
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The CRSP candidate will take notice of the inclusion of alcoholism and drug addiction in the definition of
“disability”. The subtleties of alcohol and drug screening and testing as BFORs are discussed in the
Health and Wellness (HW) domain.
Government Employees Compensation Act (GECA)

To reiterate, workers’ compensation is a matter of provincial jurisdiction. GECA is a federal Act, which
does not create a federal compensation system, but merely sets out the parameters of interaction
between the federal civil service (and other federal Crown agencies) and provincial workers’
compensation regimes. Federally regulated workplaces in the private sector, such as a cross-border
trucking firm, are not covered by GECA. GECA does not apply to members of the regular force of the
Canadian Forces or the RCMP. For these workers, there is a disability pension available under a federal
pension statute (only to this extent is there a federal workers’ compensation system).
“Accident” is defined in GECA in a way that is similar to most provincial schemes:
"accident" includes a wilful and an intentional act, not being the act of the employee, and
a fortuitous event occasioned by a physical or natural cause;
Examining the following definitions in GECA, one can see that their true meanings are totally dependant
on whatever the province has decided in its compensation statute in the province that the federal civil
servant (or analog) is working in:
"compensation" includes medical and hospital expenses and any other benefits,
expenses or allowances that are authorized by the law of the province where the
employee is usually employed respecting compensation for workmen and the
dependants of deceased workmen;
"industrial disease" means any disease in respect of which compensation is payable

under the law of the province where the employee is usually employed respecting
compensation for workmen and the dependants of deceased workmen;
The central section of GECA is section 4:
Persons eligible for compensation

4. (1) Subject to this Act, compensation shall be paid to
(a) an employee who

(i) is caused personal injury by an accident arising out of and in the course of his
employment, or
(ii) is disabled by reason of an industrial disease due to the nature of the
employment; and
(b) the dependants of an employee whose death results from such an accident or
industrial disease.
Rate of compensation and conditions

4(2) The employee or the dependants referred to in subsection (1) are, notwithstanding
the nature or class of the employment, entitled to receive compensation at the same rate
and under the same conditions as are provided under the law of the province where the
employee is usually employed respecting compensation for workmen and the
dependants of deceased workmen, employed by persons other than Her Majesty, who
(a) are caused personal injuries in that province by accidents arising out of and in
the course of their employment; or
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(b) are disabled in that province by reason of industrial diseases due to the
nature of their employment.
Putting it simply, workers and survivors get the compensation benefits of the province they are working in.
There are two other sub-rules that can be important:
Yukon Territory and Northwest Territories

5. Where an employee is usually employed in the Yukon Territory or the Northwest
Territories, the employee shall for the purposes of this Act be deemed to be usually
employed in the Province of Alberta.
Person employed outside Canada

6. Where an employee, other than a person locally engaged outside Canada, is usually
employed outside Canada, the employee shall for the purposes of this Act be deemed to
be usually employed in the Province of Ontario.
Non-Smokers’ Health Act (NHSA)

The overwhelming majority of anti-smoking standards are found in provincial and municipal laws, which
are beyond the scope of the CRSP exam. The NHSA applies to the federal civil service and to any federal
employer under the Canada Labour Code, Part II. You will find NHSA signs posted in railway stations and
airports. The Act is under the federal department of labour and Inspectors under the Act are the same
health and safety officers as under the Canada Labour Code, Part II. Under the NSHA:
"smoke" means to smoke, hold or otherwise have control over an ignited tobacco
product;
"tobacco product" means any product manufactured from tobacco and intended for use
by smoking;
"work space" means any indoor or other enclosed space in which employees perform the
duties of their employment, and includes any adjacent corridor, lobby, stairwell, elevator,
cafeteria, washroom or other common area frequented by such employees during the
course of their employment.
The central sections under the NSHA are sections 3 and 4:
Duty of employers
3. (1) Every employer, and any person acting on behalf of an employer, shall ensure that
persons refrain from smoking in any work space under the control of the employer.
Designation of smoking rooms and areas
(2) An employer may, to the extent permitted by the regulations, designate for smoking
(a) enclosed rooms under the control of the employer other than rooms normally
occupied by non-smokers; and
(b) areas under the control of the employer on an aircraft, train, motor vehicle or ship or in
an airport passenger terminal, railway passenger station, interurban bus station or marine
passenger terminal other than areas normally occupied by non-smokers.
Exception
(3) Notwithstanding subsection (1), an employer may require employees, by reason of
the nature of their duties, to perform those duties in a room or area designated for
smoking under subsection (2).
Independent ventilation
(4) Where an employer has designated a room for smoking under subsection (2) in a
building or portion of a building the construction of which commenced before January 1,
1990, the employer shall, to the extent reasonably practicable, ensure that the room
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conforms to any requirements of the regulations respecting independent ventilation of

designated smoking rooms.
Smoking prohibited
4. (1) No person shall smoke in any work space under the control of an employer except
in a designated smoking room or designated smoking area.
Individual employees can be liable under section 3 if they are acting on behalf of the employer.
The NSHA is not the most strictest of anti-smoking statutes in that the possibility of smoking areas exists,
and that employees may be required to work in those smoking areas, thus being exposed to second-hand
tobacco smoke. A designated smoking area will be considered only in consultation with a workplace
health and safety committee or health and safety representative. There are special rules for aircraft and
trains. If a provincial crown agency operates a train, it will not be under the NSHA. The federal Minister
can arrange for provincial Inspectors to enforce the NSHA. The fines are relatively minimal under this Act.
Radiation Protection Regulations, SOR/2000-203

These regulations were mentioned earlier in regard to placarding and labelling for radioactive materials.
These regulations are under the federal Nuclear Safety and Control Act and apply to both federal and
provincial work places. An important requirement is for a radiation protection program:
Radiation Protection Program

4. Every licensee shall implement a radiation protection program and shall, as part of that
program,
(a) keep the amount of exposure to radon progeny and the effective dose and equivalent
dose received by and committed to persons as low as is reasonably achievable, social
and economic factors being taken into account, through the implementation of
(i) management control over work practices,
(ii) personnel qualification and training,
(iii) control of occupational and public exposure to radiation, and
(iv) planning for unusual situations; and
(b) ascertain the quantity and concentration of any nuclear substance released as a
result of the licensed activity
(i) by direct measurement as a result of monitoring, or
(ii) if the time and resources required for direct measurement as a result of monitoring
outweigh the usefulness of ascertaining the quantity and concentration using that
method, by estimating them.
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The radiation exposure limits for workers is Canada are found here:
Effective Dose Limits

1.(1) Every licensee shall ensure that the effective dose received by and committed to a person described
in column 1 of an item of the table to this subsection, during the period set out in column 2 of that item,
does not exceed the effective dose set out in column 3 of that item.
TABLE
Column 1 Column 2 Column 3
Effective Dose
Item Person Period
(mSv)
Nuclear energy worker, including a (a) One-year dosimetry period 50

1.
pregnant nuclear energy worker (b) Five-year dosimetry period 100
2. Pregnant nuclear energy worker Balance of the pregnancy 4
A person who is not a nuclear energy

3. One calendar year 1
worker
Equivalent Dose Limits

1.(1) Every licensee shall ensure that the equivalent dose received by and committed to an organ or
tissue set out in column 1 of an item of the table to this subsection, of a person described in column 2 of
that item, during the period set out in column 3 of that item, does not exceed the equivalent dose set out
in column 4 of that item.
TABLE
Column 1 Column 2 Column 3 Column 4
Organ or Equivalent Dose

Item Person Period
Tissue (mSv)
1. Lens of an eye (a) Nuclear energy worker One-year dosimetry period 150
(b) Any other person One calendar year 15
2. Skin (a) Nuclear energy worker One-year dosimetry period 500

3. Hands and feet (a) Nuclear energy worker One-year dosimetry period 500
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Competency LE2: Introduction to OHS Law

In this subdomain we are interested in the “big ideas” in OHS law. Subsequent subdomains deal with
more specific issues. The “big ideas” are themes that underlie OHS legislation and practice.
The Internal Responsibility System (IRS)
The CRSP candidate should be very familiar with the concept of the Internal Responsibility System – the
philosophy that underlies OHS legislation in Canada. The CRSP will understand the connections between
the IRS and:
 due diligence
 the “organizational chart”
 the management system
 the OHS management system
 the “three worker rights”
 accident theory
 quality and innovation
 risk management
IRS Ham Royal Commission procedural regulation

performance regulation command and control regulatory regime
statutory law statutory duties and rights preambles
purpose clauses authority responsibility
accountability board of directors officer of corporation
right to know right to refuse right to participate
IRS analysis IRS audit bipartite
legal definition prescribed Crown corporation
Crown agency
The IRS is a system within an organization where every individual is responsible for health and safety.
First, it can be thought of as your organizational chart, with a clear set of statements about responsibility
and authority for health and safety listed for each person, no exceptions. See Figure 4. Accountability, in
theory, is built right into the organizational structure. Second, the people in this hierarchical structure
interact with each other to identify and solve health and safety problems and to seek opportunities to
improve the processes they are involved with. Everyone at all levels takes initiative on health and safety.
As well, everyone is obligated to report upwards unresolved concerns and to respond properly to the
unresolved concerns of others.
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Figure 4. The basic structure of the IRS.
The IRS is not the same thing as an occupational health and safety management system. The IRS is the
“people framework” within the management system. As such, it holds the key to world class health and
safety performance. Whether they call it the IRS or not, the best performers have found that a system of
universal, but personal, responsibility is the most effective way to drive risk down.
The power of the IRS is that it captures the creativity, leadership, experience and knowledge of everyone
in the organization. The person in the best position to see how the work can be improved on an on-going
basis is the person who is doing the work, at whatever level in the organization. And everyone is in the
best position to see how his or her own job could be improved. Everyone does health and safety as an
intrinsic and essential part of his or her job. Health and safety isn’t an extra, separate, work activity. And,
while everyone does health and safety, each person does it in a way that fits the kind of work they have
the authority and responsibility to do. The CEO does CEO-type health and safety work and the front line
supervisor does health and safety work suitable for supervisors.
The IRS is the best answer to the question “who does health and safety here?”. Every answer other than
“everyone” is likely to be an incomplete answer, if not a bad answer. While many organizations pay lip
service to the slogan “health and safety is everyone’s job”, very few organizations have a well-functioning
IRS. Those that do, tend to be the best performers in health and safety.
The “internal” in the phrase “Internal Responsibility System” has two meanings. First, the primary
responsibility for health and safety is internal to the workplace. There is an “external responsibility
system”, which includes government enforcement agents (Inspectors and Officers), but we are not
concerned with the ERS at the moment. Figure 5 shows the distinction between “internal responsibility”
and “external responsibility”. If you believe that it is the government’s job to make the workplace safe for
you, then you would rely on the “external responsibility system”.
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Figure 5 Internal and external responsibility for OHS.
The second meaning of “internal” is that responsibility for health and safety is internal to the
work...internal to the job. Thus, we don’t talk about safety versus production, we talk about safe
production. You don’t do health and safety on Friday afternoon when you’ve got a few spare minutes, you
do health and safety as you’re doing your job all the time. We might add a third meaning of the word
“internal” ... that the motivation to do a good job on health and safety comes from intrinsic motivators, not
external rewards or sanctions. Thus, you can count on people to be engaged in safe activities when they
are out of sight.
Within the workplace we can distinguish between “direct responsibility” and indirect or “contributive
responsibility” as shown in Figure 6. The employer has the most responsibilities of all the workplace
parties, and the broadest ones. Then everyone who is working has personal and direct responsibility to
integrate OHS into how they are making their moment to moment decisions. Worker representatives and
workplace health and safety committees assist the employer and individuals in their responsibilities in
many ways. They handle concerns and complaints of individuals, particularly when routine problem-
solving does not appear to be happening. They also provide advice to the employer and individuals on
OHS matters.
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Figure 6. Direct versus contributive responsibility within the workplace.
The three workers’ rights are also part of the IRS and they function so as to enable individuals within the
central core of the IRS to make better decisions – Figure 7. A simplified view of the IRS is shown in
Figure 8.
Figure 7. The central core of the IRS are duties for everyone.
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Figure 8. A simplified view of the IRS.
The IRS idea comes from a number of places. The Ham Royal Commission into Safety in the Mines in
Ontario discussed the IRS in its 1976 report.1 The report contained a table setting out the organizational
structure of a mining company — President, VP, mine manager, superintendent, supervisor and worker.
Beside each type of person was stated their role in health and safety. Later in the report the roles of the
“worker auditor” and the health and safety committees were described as ways of ensuring that the IRS
worked well. The Ontario health and safety legislation that came into effect in 1979 was based on Ham’s
vision of the IRS and how it could be monitored and fixed.
It is highly unlikely that we would be using the phrase “internal responsibility system” today were it not for
the Ham Royal Commission. Yet the idea predates the Ham Commission. The British legislation of 1974
referred to a requirement for a company to spell out its “organizational arrangements” — who was to be
responsible for what aspects of health and safety in the organization. This phrase comes close to the
meaning of the IRS. Indeed, ISO management system models, which are strongly influenced by British
standards, can be understood to contain the idea of the IRS. We can see some elements of the IRS in the
Saskatchewan legislation of 1972, reconfirming that province’s role as a legislative innovator.
People outside of Ontario have often thought of the IRS as an Ontario concept. The Ham Commission
Report of 1976 was influential in other Canadian jurisdictions (just as the Meredith Report was) when
OHS legislation underwent reform through the 1970s and 80s. The IRS concept can be derived from
accident theory rather than from a Royal Commission Report. The fact is that if an OHS statute in Canada
has many duties for different types of people, as individuals, then it’s based on the IRS philosophy. If the
OHS Act has duties just for the employer, then it most definitely is not based on the IRS.
1. Ontario Ministry of the Attorney General, Report of the Royal Commission on the Health and Safety of Workers in Mines
Toronto: Queen's Printer, 1976.
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The Nova Scotia OHS Act has a definition of the IRS which is worth considering:
s. 2 The foundation of this Act is the Internal Responsibility System which

(a) is based on the principle that
(i) employers, contractors, constructors, employees and self-employed
persons at a workplace, and
(ii) the owner of a workplace, a supplier of goods or provider of an

occupational health or safety service to a workplace or an architect or professional
engineer, all of whom can affect the health and safety of persons at the workplace,
share the responsibility for the health and safety of persons at the workplace;
(b) assumes that the primary responsibility for creating and maintaining a safe and
healthy workplace should be that of each of these parties, to the extent of each party's
authority and ability to do so;
(c) includes a framework for participation, transfer of information and refusal of

unsafe work, all of which are necessary for the parties to carry out their responsibilities
pursuant to this Act and the regulations; and
(d) is supplemented by the role of the Occupational health and Safety Division of the
Department of Labour, which is not to assume responsibility for creating and maintaining
safe and healthy workplaces, but to establish and clarify the responsibilities of the parties
under the law, and to support them in carrying out their responsibilities and to intervene
appropriately when those responsibilities are not carried out.
While paragraph 2(a) says that everyone shares responsibility for OHS, it is paragraph 2(b) that ties
responsibility to the authority and control of each workplace party. Paragraph 2(c) contains the three
worker rights. Paragraph 2(d) clarifies that it is not the government’s job to make the workplace safe for
them, but to assist those in the workplace with the primary obligations.
The IRS is a “system”. It has parts — primarily the individual people. The parts work together in
relationships to further the purpose of the whole entity — the system. The purpose of the system is to
drive risk down and keep up the pressure so that we can go for increasing lengths of time with zero
injuries and illnesses. As a true “system”, the IRS comes with built-in self-monitoring devices that can
readjust the system when part of it fails. Work refusals, health and safety reps, and health and safety
committees are among the more obvious self-correcting feedback loops. An external loop takes us to the
government inspector on less frequent occasions. As all parts of the system are inter-related and
interdependent, damage to one part can affect another part in ways that may be indirect, but which can
be very serious.
Where does the IRS come from? Although the name might come from the Ham Royal Commission, the
basic idea comes from accident theory. It is grounded in physical and causal reality. A rich understanding
of the IRS is possible if the foundations in accident theory are made clear.
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In the first subdomain of the Management Systems (MS) domain, the importance of accident theories was
emphasized. A common view is of chains of causation that flow from weaknesses in the management
system to the direct causes of accidents as typified by the Bird and Germain model. Edward Adams
shares the same “systems” approach to causation, but he labels the causal steps with people in the
organization and then sets out what each level of the organization does. Figure 9 is a revision of the
Adams model illustrating the people in the steps more clearly.
Figure 9. Revised Adams’ model. A focus on the people in the management system
Everyone in the organization can cause or prevent an accident in the workplace. Workers can avoid
accidents by applying their training, following procedures, identifying and correcting problems and
reporting to their supervisors. Supervisors can prevent accidents by doing proper supervisory work
regarding OHS – training, inspections, investigations, safety talks, coaching, etc. Managers do
managerial OHS work – staffing and resource allocation from an OHS perspective, developing and
implementing OHS programs, etc. Presidents prevent accidents by exercising OHS leadership, requiring
an OHS management system to be developed and monitored and ensuring a healthy IRS. Board
members are responsible for ensuring that they hire the right president from an OHS point of view. We go
to everyone can cause an accident, to everyone can prevent accidents, to everyone should prevent
accidents, to everyone should incorporate OHS into their decision-making.
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The IRS is dynamic. Information flows, problems move around, and people work together to solve
problems. A front line worker fixes an OHS problem if it can be done safely. If not, the worker must report
it to someone who has more authority, resources and perhaps experience – the supervisor. If the
supervisor can’t fix it, then it moves up the management system organizational chart until it reaches
someone who can fit it. This is the normal way in which OHS issues are dealt with in the IRS.
Figure 10. Problem-solving in a dynamic IRS.
If the main core of the IRS is not working properly, then problems can be addressed outside the main
core by enlisting the aid of those with contributive responsibility, as shown in Figure 11. It must be kept in
mind that dealing with deficiencies in the main core of the IRS is not all that the indirect contributors do.
As mentioned, the OHS committee consults with and advises the workplace parties on OHS matters.
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Figure 11. When problem-solving fails.
In Figure 12, we can see that the revised sequence can be mapped onto the structure of the IRS and can
be related to personal due diligence. Due diligence is not “mere regulatory compliance” but is the generic
standard of care of the hypothetical reasonable peer – sane, sober, mature, objective, balanced, well-
intentioned and knowledgeable. Everyone must be duly diligent as an individual, but the content of due
diligence varies with the person’s authority and control. If everyone is doing everything he or she can
reasonably do in their circumstances, then the vertical chains of causation are broken and the risk is
driven down as low as it can reasonably go and we go for longer and longer periods of time without
accidents. On the left side of Figure 12 we have the people and on the right side we have elements of the
management system (policies, programs and procedures). People causes and system causes are linked
together. Everyone on the left side should know which elements of the management system on the right
they are personally responsible for. The OHS management system elements on the right specify who
should be carrying them out. The “behaviour versus systems” argument is done away with. From a legal
point of view, what individuals are doing on the right side of the diagram is their personal due diligence.
The diagram links most of our big ideas in OHS.
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Figure 12. Mapping the IRS concept onto due diligence

and the management system
In Figure 13, we can ask whether a particular OHS Act sets out duties that correspond to the dominos in
the “pre-legal” IRS model. We have seen that accident theory is the basis for the IRS philosophy. An
OHS Act not based on the IRS accident theory would have duties just for the employer. An OHS Act
based on the IRS model will have duties for individuals at all levels of the organization. In Canada, the
Northwest Territories Mine Safety Act is probably the best OHS Act in terms of exemplifying the IRS. The
Canada Labour Code, Part II, on the other hand, hides supervisors and managers in the definition of
“employer”, even though it has duties for “employees”.
If we understand that due diligence can include “continuous improvement” when obvious defects,
anomalies, contraventions and hazards do not appear to exist (when complacency normally sets in), one
can see that this is a very powerful model.
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Figure 13. Mapping the legal duties onto the IRS model
Some people understand the IRS from a labour relations point of view, as set out in Figure 14. In this
view, the IRS is not primarily about individuals, but is about two groups in the workplace, workers
collectively and management collectively. The two parties send representatives to the OHS committee,
which, essentially, manages OHS. An OHS Act based on this version of the IRS would place emphasis
on the powers of the OHS committee and of worker representatives. It would, unfortunately, undermine
personal responsibility for OHS. It is also not what the Ham Commission intended.
Figure 14. The labour relations view of the IRS.
The Concept of Due Diligence

There are many expressions for “due diligence” in Canadian OHS statutes. “Take all reasonable care.”
Do everything “reasonably practicable”. “Take every precaution reasonable in the circumstances.”
Although there are slight variations depending on whether key terms such as “practicable” are defined in
a particular Act, the expressions are fundamentally about the same concept. Due diligence is the “flip
side” of “negligence”. Negligence is a cause of action in tort law. It is an idea that has been in the law for
a very long time. It means, in essence, that X harmed Y by being careless; by not living up to the
standard of care the reasonable person would have lived up to … in the circumstances. It is not about
harm being caused intentionally.
Due Diligence as a Defence. There are two main types of due diligence: a duty and a defence. As a
defence, one starts with a specific duty and then asks what a reasonable person would do, in the
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circumstances, to ensure compliance with that duty. Most specific duties are found in the regulations. Let
us use a supervisor’s due diligence as an example. A terrible accident occurs and the inspector/officer
arrives to investigate. The inspector decides that the supervisor of the killed or injured worker is at fault.
The supervisor is charged under the OHS legislation for the breach of a specific duty. Some (many)
months later, the case comes to trial. The prosecution shows “beyond a reasonable doubt” that the
supervisor breached the duty. Now it is the supervisor’s turn to show on a “balance of probabilities” that
the supervisor had taken every precaution reasonable in the circumstances to comply with the duty prior
to the accident so as to avoid the harm. This is called the defence of due diligence. If the judge is
persuaded that due diligence on the part of the supervisor existed prior to the accident, the judge will
acquit the supervisor. Here, due diligence is a formal legal defence. The supervisor is innocent even
though the tragedy happened.
The judge will not be satisfied with general expressions of sentiment, or with general precautions. The
judge will want to hear about specific activities the supervisor undertook that were relevant to the
prevention of the accident in question; more specifically, to the prevention of the breach of the legislation
the supervisor stands accused of. Due diligence is not an attitude. So, if the specific duty in question is
that the supervisor must ensure that a worker working at height is wearing fall arrest PPE, then the due
diligence precautions the supervisor might have taken include training on the use of fall arrest, safety
talks about fall arrest, observation of the worker working at height, coaching the worker one-on-one on
the need for, and proper use of, the PPE, and engaging in discipline when nothing else seems to work.
The supervisor can give oral testimony, enter documents and provide witnesses from the workplace. The
documents are not due diligence -- they are evidence of due diligence. The Crown will be able to cross
examine anyone giving oral testimony. This is an important check on exaggeration, overblown
generalities, self-serving and selective memories and outright lying. The supervisor may have said that
the safety rules were reviewed with workers. The Crown will ask “when, for how long, with what
materials, who was there, was there time for study or questions, was there post training observation,
review and reinforcement?”.
The purpose of a prosecution under OHS legislation is not the same purpose as a prosecution under a
true criminal statute like the Criminal Code of Canada. The main purpose of a regulatory prosecution is
“deterrence” -- to motivate the defendant (and observers) to change behaviour from a substandard level
to a proper, higher level. This will result in a reduction of risk in the workplace. A true “crime”, on the
other hand, usually involves intention (usually) to do harm, and so the purpose of the prosecution has
more to do with punishing wicked minds (to use non-contemporary language). So if a judge sees that a
supervisor was duly diligent prior to the accident, there is no point in a conviction because the supervisor
is already taking every precaution reasonable in the circumstances -- the supervisor cannot be deterred
further. Since there would be no reduction in risk as a result of a conviction, why convict? One can see
how a judge might convict for the purpose of general deterrence of observers (to “encourage the others”),
but such general deterrence should be a side benefit to specific deterrence.
Suppose the supervisor turns over a new leaf after the accident and begins, for the first time, to take OHS
seriously. After the accident but before the trial, the supervisor engages in many positive activities to
reduce risk. Will post accident due diligence be useful as a legal defence? No. Only pre-accident due
diligence makes a supervisor innocent. But post-accident due diligence can be important for two other
reasons. It is possible that the Crown may decide not to charge the supervisor if post-accident due
diligence is underway. The rationale is that the supervisor has been deterred, so what is the point of a
prosecution and a conviction? The role of the inspector is to inspire risk reduction, not to fire lightning
bolts of moral retribution. But the inspector has to be convinced that the change is real and is permanent.
Second, a judge may convict, but may give a much reduced penalty, again on the grounds that the
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supervisor has been deterred to a large extent and needs little more than a small shove in the right
direction.
What is the point of thinking about due diligence before you actually need to? Well...when do you need to
think about it? Obviously you have to think about it before an accident occurs, or it’s no defence. But
why are we thinking about it? Just to ensure a legal defence? Is acquittal the purpose? The real reason
is that due diligence is a means to an end -- risk reduction. If everyone in the workplace is alert to his or
her own due diligence activities we should see a large drop in the number of accidents. If individuals are
worried about ultimately showing their due diligence then care is more likely to be taken.
Is due diligence available as a defence for all prosecutions? In the famous 1978 Supreme Court of
Canada case of Regina versus Sault Ste. Marie, the court said that other than a true criminal offence,
there are two regulatory offences: an absolute liability offence and a strict liability offence. Note that “strict
liability” is used here in a different way than in the “cause of action” called strict liability in tort law. Due
diligence is not available as a defence for an absolute liability offence. It is available as a defence for a
strict liability offence. The latter is more serious than an absolute liability offence. As a general rule, if a
jail sentence is a possible penalty in a prosecution, then the offence will be a strict liability offence. An
exception would be where an OHS Act expressly stated that due diligence was a defence for certain
offences, regardless of a possible jail sentence. If a jurisdiction has a ticketing system for minor offences
where a set fine is possible without a trial, then due diligence would not be available. Some jurisdictions
have introduced “administrative monetary penalties” (AMP) where an inspector/officer has authority to
levy a fairly large monetary penalty (fine) on the spot without a trial. The amount of the penalty can be
very high, much higher than the traditional fines under a ticketing system. The purpose of AMPs is to
provide a level of deterrence in between a ticket and a post-trial conviction. Unless the legislation creating
the AMP allows a form of appeal where due diligence is an express defence, then the lack of a jail penalty
as part of the AMP would mean no due diligence defence is allowed. In some non-OHS regulatory
regimes the dollar amounts for AMPs are in the 100’s of thousands and a current issue is whether such
high monetary levels are just as serious as being jailed and so a due diligence defence ought to be
allowed.
One should note that there is due diligence that you should engage in when you don't actually know of a
defect or a danger, and then there are due diligence steps you should be taking once you know that a
hazard exists. Preventative maintenance may be due diligence for a duty to maintain equipment when
you don't actually know your punch press is defective, but if a worker has advised you that the machine is
not working properly, then all that preventative maintenance activity becomes irrelevant. What now
counts as due diligence is taking the machine out of service and correcting the problem – “what would a
reasonable person do once aware of the problem?” So, a supervisor might have been duly diligent for a
long time, ensuring workers were wearing protective gear by training, observing, coaching, and so on, but
once the supervisor becomes aware that a particular worker is not wearing protective equipment, the
supervisor's due diligence now consists of taking action right away to ensure compliance. You can't rest
on your due diligence laurels.
Due Diligence as a Duty. OHS Acts may have one or more “general duty clauses”(GDC). A general duty
clause is a duty to be duly diligent, rather than a specific duty clause for which we must decide whether
due diligence has been done as a defence. For example, the following is an employer’s general duty
clause: "... an employer shall take every precaution reasonable in the circumstances for the protection of
a worker." A GDC is not dependent on the regulations (it does not say “as prescribed” or mention
compliance with the regulations). A GDC is not about any particular hazard. It does not specify any
particular control. There can be GDC’s for the employer or for individuals: workers, supervisors,
managers, officers and directors.
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For a GDC, extra effort must be taken to analyse the specific steps that must be taken in the
circumstances. GDC’s are open-ended. You have to be proactive, creative and have skills at identifying
and assessing risks in order to fulfill general duty clauses. An employer’s GDC means that compliance
with occupational health and safety law requires far more action by the employer than merely complying
with regulations and orders related to the OHS Act. What a company must do in order to comply with the
general duty varies with the kinds of hazards in the workplace, the risks they pose, and other factors. On
a day-to-day basis, the employer must determine for itself what measures it must take to achieve
compliance with the GDC. It cannot be passive and rely on the inspectorate, because it is not an
inspector’s obligation to identify hazards and risks and determine the appropriate controls that must be
implemented. The inspector does not have the time, the resources, the authority, the experience and
most importantly, the intimate local knowledge necessary to determine what compliance with the GDC
means for a specific employer on an ongoing basis. To the contrary, the employer – its entire
organization – is obligated under the IRS framework to assess and monitor hazards and risks at the
workplace and to identify and implement appropriate controls to address such risks because they are in
the best position to do so. An inspector’s silence with respect to an employer’s operations should never
be construed to mean that the employer is in compliance with occupational health and safety legislation,
including the complex and difficult obligations under the GDC.
In one particular case, the worker went inside a machine that handled newly made bricks on pallets
because of a jam. The machine was turned off before he went in but it was not locked out. It came on
while he was still inside and the worker was injured. The company was convicted for its failure to ensure
lockout. The supervisor was convicted under the supervisor’s GDC because he failed to instruct, inform
and train worker about lockout procedures. There was no express duty on supervisors to do lockout
training specifically. But if the employer must have a certain safety procedure, then the issue is
immediately raised -- should the supervisor engage in safety training about that procedure, under the
supervisor's general duty to take care? The moral of this story is very broad. What activities for
supervisors are implied where the employer has regulations to follow, or has created its own safety
procedures under its own general duty clause?
While the employer may have specific duties and a GDC to worry about, some individuals, such as
supervisors, who have a personal GDC may have diligence operating at three levels. First, depending on
the jurisdiction, the supervisor may have duties that require the supervisor to enforce the regulations -- a
"regulation dependent duty". Reasonable care means matching the work with the regulations and then
engaging in training, observing, coaching and discipline such that the regulatory rules are followed.
Second, the employer may have its own GDC. It will develop safety procedures, rules and precautions
that cover its hazards that are not addressed specifically by the regulations. If the supervisor has a duty
to enforce the employer's safety procedures then similar due diligence activities as in “level one” are to be
engaged in. It is mainly the source of the rules which differs, but we are also working with very
workplace-specific problems when we move from the regulations to the employer's safety manual. Third,
where a supervisor has his or her own GDC, the supervisor may be liable for failing to be creative; for
failing to identify and address a hazard that was not covered by the regulations or by the employer's
safety manual. Due diligence here would involve engaging proactively in various risk assessment and
control activities. Inspections, investigations, task analysis, and "tailboard conferences" are some of the
many techniques supervisors should be able to engage in under their general duty clauses. Due
diligence is definitely not "mere regulatory compliance", and supervisors are not merely passive rule
enforcers. Figure 15 illustrates how GDC’s can create “levels” of due diligence.
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Figure 15. Three levels of due diligence for an individual with a personal GDC.
There is a close connection between the employer’s GDC and the content of the employer’s OHS
management system. Some programs in the system will be there because of specific duties. There will
be a WHMIS/GHS program in the MS because there are specific duties concerning WHMIS/GHS. But
many of the programs in the MS will be there because of the employer’s GDC. If workers in a remote
wilderness area are threatened by bears, then the GDC requires the employer to have a “bear safety
program” even though such a program is not mentioned anywhere in the regulations. The employer’s
GDC is intimately related to risk management. Continuous risk management activities will identify new or
previously unobserved hazards that are not mentioned in the regulations, and the GDC would drive a
response … to develop adequate controls. Where the employer is a corporation, and acts through others,
a well-functioning Internal Responsibility System is the best means of ensuring compliance with an
employer GDC.
Due diligence factors. There is no all-purpose "recipe of ten steps to due diligence" for any workplace
party. There are some obvious activities that everyone should be doing. But so much of what is
reasonable care is highly workplace-specific. Increasingly, the courts are not happy with generic
activities– a general safety training course that took place two years ago at a different location or a non-
descript safety brochure cribbed from someone else. They want to see safety activities that are focussed
on the day-to-day work. "Taking all reasonable care in the circumstances" is not a static, "frozen-in-time"
concept. It is not a minimalist approach to safety that gets in the way of continuous improvement or the
unlimited pursuit of excellence. The goal posts move and the bar is raised, depending on what new
knowledge, techniques and so on are available. It is not reasonable to use outdated control measures.
Due diligence is the answer to the question “how far do I have to go” for health and safety? You have to
take EVERY precaution reasonable in the circumstances. This is a very high standard. It is not an
absolute standard. A workplace party does not have to take every precaution in the circumstances, but
every precaution REASONABLE in the circumstances. If every precaution had to be taken, the
workplace would be shut down. Taking every precaution is unreasonable. In risk terms, it is irrational to
devote resources to the elimination of all risk because the latter is an impossible goal if any work is to be
done at all.
What does “reasonable” mean? It is a very useful and important word in the English legal tradition. We
see the word in many legal expressions such as “reasonably foreseeable”, “the reasonable person test”,
“beyond a reasonable doubt”, and so on. A common complaint is that “what I think is reasonable is not
what someone else will think is reasonable” --ie, that “reasonableness” is subjective. Reasonableness is
not subjective; it is objective. It is common sense “on its best behaviour”, so to speak. A group of
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unbiased but knowledgeable and mature people will generally come to the same conclusion as to what is
reasonable. One can imagine that a hypothetical ghostly jury of your peers is watching. They are your
peers in the sense that they are mature, experienced persons doing the kind of work that you do. What
would this jury of your peers think is a wise thing to do in the circumstances? What is reasonable is not
absolute or perfection or anything superhuman. It is a balanced, wise, prudent judgement that is
understandable to others.
The reasonableness of care is inextricably related to the special circumstances of each case. A variable
standard of case is necessary to ensure the requisite flexibility to raise or lower the requirements of care
in accord with special circumstances of each factual setting. Thus, in any particular case,
“reasonableness” is determined by (a) the gravity of the potential harm; (b) the alternatives available to
the accused party; (c) the likelihood of harm; (d) the degree of knowledge or skill expected of the
accused; and (e) the extent that the underlying causes of the offense are beyond the accused’s control.
Accordingly, the degree of care mandated under a GDC is directly related to the hazards/risks presented–
the greater the potential for substantial injury, the greater the degree of care required by the person with
the GDC.
Asking what your peers might do in the circumstances can lead to the use of industry standards, codes of
practice and so on. But be aware that it is possible that a particular industry is behind the times in terms
of safety. It has happened that courts have said that in a particular area or industry group the standards
have generally slipped to an unreasonably low level.
As mentioned, a very important factor is risk. The greater the risk is, then the greater the care that is
reasonable. Risk is a combination of the probability that something will happen and the severity of the
event when it happens. We tend to focus on high severity events. Novelty is a red flag when it comes to
risk. A new worker, new process, a new machine, a new location -- these are associated with high
severity risk. High energy sources are also red flags.
Also as mentioned, knowledge of hazards can change a person’s due diligence status. It should be
emphasized that the reactive due diligence response is often triggered by the report of a worker. In many
jurisdictions, workers are under a positive duty to report hazards to the employer and the supervisor. The
duty to report, and then the need of the employer and the supervisor to respond to their new knowledge
of a hazard, can provide the mechanism for considerable risk reduction. Indeed, this dynamic duo is what
drives the IRS to a very large extent. Note that if workers are reporting hazards to the workplace OHS
committee instead of the employer or supervisor, this triggering of reactive due diligence is undermined.
Note also that if an employer or supervisor tries to discourage reports so as to not have the need for
reactive due diligence triggered, they are simply asking for trouble on the proactive side, risk will be
building up while the employer or supervisor is enjoying (short-lived) blissful ignorance. It is often said that
OHS committees do not have enough “power” to fix things in the workplace. What is under-appreciated is
that when a worker representative of a committee informs the employer officially of a problem, then the
employer’s due diligence status changes. The employer has to respond reasonably to the new
knowledge. The existing due diligence activities may be nullified by the new knowledge. In the
development of health and safety systems and in the extensive training given to employees, it is
sometimes forgotten that we should highlight the specific steps that are expected when a hazard
becomes known. To put it crudely, your existing due diligence defense may disappear when you actually
know of a defect, contravention or danger. The primary question then is "what would the reasonable
person in your shoes do with this new knowledge?”
The context also includes the nature of the industry you are in. In large part this has to do with risk. High
risk industries require greater care. But other factors may come into play, such as the level of
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capitalization, level of education, permanence of the workforce, and so on. For individual’s, the context
includes who you are and where you are located in the organization. Many people might fit the definition
of a supervisor, but not all are similarly placed in terms of authority and control. Additionally, employers
must also identify and implement precautions consistent with their degree of knowledge and skill. The
duties of a small “mom and pop” convenience store will differ greatly from those of a large, multinational
corporation. A company with sophisticated internal corporate standards that are designed to identify
potential risks in the workplace and set forth reasonable measures to address those risks will be held to
those standards – they would represent the reasonable precautions necessary under the GDC for that
employer for its particular workplace. Failure to comply with those internal corporate standards should
lead to a conclusion that the employer failed to take reasonable precautions to protect its workers in the
circumstances. In terms of the alternatives available, “reasonableness of care is often best measured by
comparing what was done against what could have been done. The reasonableness of alternatives the
accused knew or ought to have known were available is a primary measure of due diligence.”
Is money a factor in due diligence? Yes and no. For specific duties in the regulations, the cost of
compliance is not important. If the employer can’t afford to do what is specified or implied, the employer
shouldn’t be in that business. It is different for the GDC since it is more open and flexible. There is usually
a range of options that could be considered “reasonable”. Cost combined with risk assessment should
indicate which of a number of possible controls is the most reasonable. Part of being reasonable is
allocating limited resources wisely between different risk reduction opportunities.
Reasonable mistake of fact. One branch of due diligence has to do with "reasonable mistake of fact". In
one case, the supervisor believed a trench was too shallow to require timbering to shore up the sides.
The walls collapsed and killed a worker. The supervisor was acquitted because the judge believed the
supervisor had an honest and reasonable belief in a set of facts that, if true, would have meant that a
breach of the law had not been committed. It is a defence, however, that is very narrow. In another case,
the company used the defence after a worker was killed when a defective gate swung into the path of an
oncoming train in a mine. The court said the employer couldn’t base the defence on the unforeseeable
and peculiar WAY in which an accident unfolds; the issue is the existence of the original hazard. As well,
the employer can't argue blissful ignorance of the existence of the hazard. The employer would have to
have an actual belief that the hazard is not there. That belief has to be reasonable as well as honest.
Given that due diligence requires inspecting, investigating, following up on complaints, and generally
being proactive, when is it exactly that one's belief in a non-hazardous workplace would be reasonable?
The employer would clearly be off the hook for a hidden, latent defect in a device that could not have
been discovered in the workplace. Otherwise, one should not count on this defence too heavily. A
workplace party should never think that purposely turning a blind eye to safety problems will be of any
help in raising this defence.
Prosecuting a GDC. How does one make a due diligence defence to a charge of breaching a due
diligence duty? Does the prosecution have to show the defendant is not duly diligent or does the defence
have to prove it was duly diligent? To establish a prima facie case of a breach of an employer’s GDC, the
prosecution must merely allege with particularity the reasonable precautions the employer failed to
undertake in the circumstances at issue. The precaution alleged could arise from, among other things, an
internal standard created by the defendant, a regulation under another Act, following a manufacturer’s
instructions regarding equipment, maintenance failures, management plans, uniform practice (i.e., the
failure to have a system in place to control certain dangers), or engineering expertise. Proactively, there
should be a continuous monitoring for relevant “authoritative standards” that may need to be adopted. If
there is no external standard, then the prosecution might use an internal standard of the defendant. The
prosecution would state a prima facie of a GDC by alleging that a company had an internal standard
designed to identify and address risks, which it failed to follow. Under those circumstances, the internal
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standard would constitute the “reasonable precaution” the employer failed to undertake. An employer is
particularly vulnerable if it has many locations and there is a lack of consistency between locations. It is
also important that the employer be very careful what it says it will do in its OHS management system
documents. Once the prosecution has identified what the employer should have done, the employer’s
defence would be that it did in fact use reasonable care. With respect to the defendant’s burden in
defending against a claim of breach of a GDC, courts have adopted the common law reasonable care
standard. The employer can argue that the prosecution picked the wrong authoritative standard. Or it
could argue that it did in fact comply with that authoritative standard. Or it could argue that it complied
with a different standard that was reasonable. The defendant proves its case on a “balance of
probabilities”.
Deterrence
An important legal concept is “deterrence”. It means motivating someone to change their conduct (or
maintain it) so as to reach or operate at an acceptable level. The primary purpose of regulatory laws such
as OHS and environmental laws is “deterrence” rather than “punishment. So deterrence explains how an
inspector’s discretion is exercised in terms of enforcement. “What do I need to do to this person to deter
them? ... a warning, an Order, a ticket, a full-blown prosecution, a judge’s order and force?” It also is the
framework that a judge uses in sentencing: “What penalty will deter this person? ... a warning, a low fine,
a high fine, a jail sentence?” There is “specific deterrence” – a person’s behaviour changes after they
receive a penalty, and there is “general deterrence” or “the observer effect” – an observer’s behaviour
changes when seeing someone else get penalized. Prosecution decisions have an educative effect in
terms of general deterrence, and a CRSP is participating in this when he or she circulates a news-clipping
or case report of an OHS or environmental prosecution within the organization. Judges don’t write lengthy
decisions just for the people in front of them.
Law and Ethics (LE)
Figure 16. The model of “progressive enforcement”, or escalating deterrence.
Workers’ Compensation Legislation

The CRSP should possess a basic understanding of the principles of workers’ compensation law.
Workers’ compensation falls into the area of law known as “administrative law”, where a bureaucratic
system is created in relative isolation from the judicial system (the courts). This isolation is intentional so
that cases are handled by administrators who are specialists, not generalists (as Judges typically are).
These administrators aim for fairness and consistency in accordance with internal policy, but without the
legal system’s concern for the rules of precedent, evidence and procedural formality. “Finality” and
“privative” clauses seal off the administrative world from the courts.
There are many issues in workers’ compensation that will be common across all jurisdictions.
Compensating for occupational disease is one cluster of difficult issues. The special status of medical
records and their confidential nature is another set of issues.
Most compensation systems in Canada have a combination of collective liability for most employers and
“self-insured” status for (mostly) public sector employers, where the possibility of the employer’s
bankruptcy determines the need for one status or the other. Compensation systems wrestle with
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problems of employer motivation to prevent accidents under collective liability approaches, and so have
developed forms of “experience rating” to help drive down risk.
CRSPs should be fully aware of the issues involved in “return to work programs” and “modified work
programs” (the terminology differs, and there is some overlap with human rights accommodation for the
handicapped worker in the absence of a worker’s compensation aspect). Most of the detail will be
covered in the Health and Wellness (HW) domain.
Among the many possible types of lawsuits associated with workplace accidents, the “third party” cases
governed by workers’ compensation systems are a significant subset.
It is difficult to be definitive about an OHS subject that is in provincial jurisdiction, as mentioned above.
Yet, the CRSP should be familiar with the common types of benefits conferred by workers’ compensation
systems. Regardless of the specific percentage of net average earnings used in a particular
provincial/territorial jurisdiction, there are common issues about the scope of coverage for non-economic
loss, whether family dependants should also get non-economic loss, whether the surviving spouse should
be retrained to re-enter the labour market if unemployed, what to do about handicapped offspring, or
multiple spouses and so on.
What if there are disagreements about the degree of impairment? Can an unhappy participant in the
workers’ compensation system get a second opinion? How many levels of appeal are there? How much
discretion do the appeal adjudicators have to diverge from the policy of the compensation Board?
Workers’ compensation is a provincial matter, constitutionally. There is no general federal compensation

scheme (with the exception of the pension scheme for operational military people and the RCMP). There
is “procedural” federal legislation about workers’ compensation – the Government Employees’
Compensation Act. This Act deals with the relationship between federal government employees and the
relevant provincial compensation regime; it does not create a separate federal compensation system.
The CRSP need not know the details of workers’ compensation law in all jurisdictions (although some
OHS professionals who are responsible for OHS for a trans-Canada corporation will have to be familiar
with many provincial regimes). The CRSP exam cannot cover the details of workers’ compensation
legislation.
privative clause finality clause judicial review

mandamus certiorari administrative law
administrative tribunal quasi-judicial collective liability
experience rating rights of action insurance
duty to re-employ return to work modified work
accommodation waiver of entitlement election
material change in circumstances subrogation
Historically, the common law was viewed as inadequate to provide compensation to workers and their
families, hence, the introduction of no fault compensation legislation at the beginning of the twentieth
century. Workers’ compensation legislation sets out the rights and duties of employers and workers with
regard to the compensation of workers and their families for work related harm. Generally, workers and
their families are not allowed to sue the employer or co-workers. The giving up of common law rights in
return for no fault benefits under an administrative regime is referred to as the “historic bargain”.
Law and Ethics (LE)
The common law is with us still. There are some workplaces where workers’ compensation does not
apply and there are some situations where a worker (or his or her family) has an option of suing a “third
party” to the compensation regime. Further, there are situations where a visitor to the workplace can sue
in “occupiers’ liability”. As well, where an occupational accident results in the release of materials to the
surrounding neighbourhood, the neighbours are not prohibited from suing by workers’ compensation
legislation, so we have the prospect of common law environmental lawsuits.
common law damages injunction

plaintiff defendant appellant
respondent trial court appeal court
balance of probabilities tort duty
right contributory negligence assumption of risk
fellow servant rule negligence precedent
reasonable person standard of care duty of care
no fault compensation cause of action remedy
indemnify case law
In the 19th century, there was no workers’ compensation system anywhere in Canada. If a worker was
injured he could sue his employer or a co-worker. If he was killed, his family could sue the employer.
Such lawsuits did occur, but the worker and his family were rarely successful. The employer had a
number of powerful defences and the plaintiff – the worker or his family – had a number of hurdles of a
practical nature to overcome. The situation was so bad that it caused a scandal and eventually resulted in
the creation of workers’ compensation systems. However, the common law lives on and lawsuits are still
possible in some areas. The old defences are been modified and weakened.
1. “Volenti Non Fit injuria” or “assumption of risk rule”. If the worker became aware of hazards in the
workplace and did not quit his job he was deemed to have accepted the risks. Thus, only a new
worker or a worker injured by a hidden or latent hazard had any chance of success in court. This
rule still exists but has been watered down in the case of workplace lawsuits.
2. Doctrine of common employment, or the “fellow servant rule”. If the accident was caused by a co-
worker to any degree, the employer was completely innocent. Today the damages would be
divided up on the basis of percentage of fault.
3. Contributory negligence. Similarly, if the worker himself was at fault for the accident, to any
degree, the employer didn’t have to pay. This too has changed. The worker’s contribution to
negligence as a percent of fault would just be deducted from the claim against the employer.
4. Violation of the employer’s rules. If the worker broke a safety rule at work during the course of the
accident, he would likely lose the case. One can see that a cynical employer would have a lot of
rules that would not be enforced or trained on but which would be handy in a lawsuit.
5. There weren’t many safety laws in the 19th century but there were a few machine guarding
statutes. A breach of one of these could be used by the employer as a defence.
6. Low standard of care. The worker or family would be suing in negligence and the test would be
whether the employer was living up to the standard of the reasonable peer. If industry standards
were low, then the duty to take care would be low, and the worker would find it difficult to
convince the judge of negligence.
Law and Ethics (LE)
There were some other obstacles workers and their families faced:
1. The worker or family as the plaintiff had the burden of proof. The employer did not have to
disprove the allegation, merely raise a defence if need be to pull the iron out of the fire.
2. There was no protection against dismissal. A worker suing his employer would be out of a job.
3. Co-workers could easily be fired too, so the worker found it difficult to get witnesses for the
lawsuit
4. Lawsuits are expensive and must be paid for during the course of the lawsuit; you couldn’t agree
to pay nothing unless you won.
5. There was great delay in getting your money even if in the end you won.
One of the earliest cases was Priestley vs. Fowler decided in the UK in 1834. The worker lost in the end,
but Lord Abinger said the following, quoted as precedent:
“[the employer] is ... bound to provide for the safety of his servant in the course of his
employment, to the best of his judgment, information, and belief.”
However, this common law duty to take care went only as far as the employer was prepared to take
precautions for himself:
“... the mere relationship of the master and the servant can never imply an obligation on
the part of the master to take more care of the servant than he may reasonably be
expected to do of himself.”
The judge also said that at common law you couldn’t force a worker under the contract to do something
dangerous – the worker could walk away from the work, and his job. This “common law right to refuse
work” wasn’t very useful without a duty not to take reprisals, which came with statutory OHS law.
There have always been lawsuits in the workplace in spite of workers’ compensation prohibitions against
them because not all workplace are covered by workers’ compensation. To summarize the common law,
if a worker is able to sue the employer, the lawsuit would be based on a claim that the employer failed to
take reasonable care in one or more of the following areas:
 duty to hire competent staff
 duty to ensure safe premises
 duty to provide safe tools and equipment
 duty to ensure a safe system of work
Through statute and case law, the old defences have been weakened. A worker does not assume the
risks of the job just by staying employed and the degree of fault of various persons only means the
damages the plaintiff is asking for are apportioned. For example, the following clauses from the Ontario
Workplace Safety and Insurance Act are typical:
Voluntary assumption of risk

116.(1) An injured worker shall not be considered to have voluntarily incurred the risk of
injury in his or her employment solely on the grounds that, before he or she was injured,
he or she knew about the defect or negligence that caused the injury.
Certain common law rules abrogated

Law and Ethics (LE)
(2) An injured worker shall not be considered to have voluntarily incurred the risk of
injury that results from the negligence of his or her fellow workers.
Contributory negligence
(3) In an action for damages for an injury that occurs when a worker is in the service
of an employer, contributory negligence by the worker is not a bar to recovery,
(a) by the injured worker; or
(b) if the worker dies as a result of the injury, by a person entitled to
damages under Part V of the Family Law Act.
(4) The worker's contributory negligence, if any, shall be taken into account in
assessing the damages in such an action.
Lawsuits by workers and their survivors will be possible today where:
 The workplace is not covered by workers’ compensation. The details will differ in different
Canadian jurisdictions, but some workplaces are too risky (circuses and professional sports) and
some are too benign (e.g. insurance company offices);
 The accident is caused by someone not covered by workers’ compensation even though the
worker is covered. These are called “third party” lawsuits. The third party could be un-employed,
a student, patient, customer, or the manufacturer of a defective product that caused the accident.
In a third party case, the worker or his or her survivors can “elect” to take compensation benefits
or sue. If they choose benefits, the compensation authority is “subrogated” to the action and sues
the wrong-doer in the name of the worker or family.
Germany under Bismarck, had the first modern workers’ compensation laws, established in 1883-4. The
UK followed with a 1897 statute, further amended in 1907. The countries first to industrialize were the
ones first to face large numbers of severely injured workers. The British regime had automatic, no fault
compensation decided outside of the courts through an arbitration process in which there were pre-set
scales of compensation. Unlike Canadian workers’ compensation systems, the UK scheme allowed
workers final recourse to the courts.
In the US, the 1907 “Pittsburgh Study” showed that in one county – Allegheny County – there were over
500 workers killed in one year and in most cases the widows and children received no compensation.
There was no welfare in those days. This study was cited around North America and workers’
compensation became a major public scandal. The source of the problem was seen to be the failure of
the common law to provide compensation. By 1920, all but eight US states had passed workers’
compensation laws.
In Ontario, the Meredith Royal Commission studied the problem during 1910-13 and, and based on
German, British and American laws, recommended a workers’ compensation system for Ontario. The
Ontario Workmen’s Compensation Act was passed in 1914 and came into effect on January 1, 1915.
Nova Scotia, BC, Alberta and New Brunswick all passed similar laws within three years. Canadian laws
were largely influenced by the Meredith Report. Meredith proposed the following principles:
1. The system should be a government-run, mandatory regime, not a commercial insurance regime.
2. It should be a “no fault” system – the employer’s negligence, or the negligence of the injured
worker would not be relevant
Law and Ethics (LE)
3. It should be based primarily on the “collective liability” of employers, so that injured workers
received their benefits from a fund paid into it by employers. Thus, if the worker’s employer went
bankrupt, the worker would still get benefits from the fund as replenished by other employers.
Government bodies that don’t go bankrupt could pay benefits directly to their own injured
workers.
4. Rather than “paying off” a worker with a lump sum, benefits should flow on a periodic basis for the
duration of the injury.
5. Decisions should be made by an independent Board, not the courts.
6. Compensation should be tied to earning power – wage replacement
7. Some money collected from employers should be diverted to loss prevention – education and
training on OHS.
Having said that the CRSP candidate cannot be asked questions about a particular workers’
compensation statute, the CRSP candidate should be able to “spot the issue” in a problem, as all
workers’ compensation systems will have to address certain issues, regardless of how they answer them.
The actual programs that are put in place to ensure compliance with workers’ compensation are best
dealt with in the BCRSP’s domain of Health and Wellness (HW). There, one will find issues related to
disability management, modified work and return-to-work programs. From a legal perspective, we can say
that a workers’ compensation scheme will have to address many of the following issues:
 What will count as an “accident” in terms of workers’ compensation coverage? Will acts of
intentional harm by co-workers – violence in the workplace – be covered? Will intentional harm to
oneself be covered? Will natural disasters that occur while a worker is on the job be covered?
 Who is a “worker” for the purposes of coverage? Will causal workers or workers operating out of
their homes be covered? Will volunteers or specific types of volunteer workers be covered? What
about apprentices and students in the workplace under educational work placement programs?
Workers’ compensation statutes may have a very different definition of a “worker” than an OHS
prevention statute.
 What will count as an “impairment”, “injury” or “disablement”? Will psychological harm as a result
of physical injury be covered? What about traumatic psychological harm (there is no injury to the
worker but the worker suffers psychological shock due to a workplace event, such as witnessing
a terrible accident? Will long term chronic stress be covered? Will disease be treated the same as
an injury from an accident?
 Who will count as “survivors” or “dependents” of the deceased worker? Obviously the spouse and
children will be covered, but what about step-children and parents or grandparents who may have
been financially dependent on the deceased worker?
 Will the scheme distinguish between employers who are under a collective liability system and
employers, such as public sector employers, who pay workers directly for their lost wages?
Law and Ethics (LE)
 Is there a list of workplaces that are not covered by the workers’ compensation system, either
because they are too high risk (circuses and professional sports) or because they are too low risk
(insurance offices)? The workers in these workplaces will be able to sue, and their employers will
consider obtaining commercial disability insurance.
 How will diseases be handled? They have always been problematic for compensation schemes
due to their chronic nature, latency periods or multiple-causation. Will some diseases be deemed
to be caused by certain occupational exposures, and if so, rebuttably or irrebuttably? Can some
pre-disease conditions be deemed to be diseases so the worker can go off on compensation to
prevent the disease from actually developing?
 In what manner has the compensation scheme mimicked the “loss prevention department” of an
insurance company by taking some money from employers and spending it on prevention
activities?
 Are there entities such as independent operators, sole proprietors or company executives who
have an option of being covered by workers’ compensation or not? Why would they do so as
opposed to getting commercial disability coverage? Protection from lawsuits?
 What are the rules governing accidents that occur while a worker is travelling outside the
jurisdiction? Is there a time limit?
 In what manner and in what time period must an employer notify the workers’ compensation
authority of a workplace accident? When and how must a worker or the survivors make a claim?
What are the consequences of not notifying the authority?
 Many insurance schemes have a “deductible”, whereby the insured must pay directly for the first
level of loss with the insurance applying to losses above the deductible? This may take the form
of the employer being responsible for paying the worker’s wages directly for the first day of lost
wages. But it is a matter of policy whether that “deductible” is one day or a week.
 Does the workers’ compensation scheme require the employer to maintain employment benefits
such as eyeglasses, drugs and dental care for a certain period while the worker is on
compensation?
 Workers’ compensation systems prohibit lawsuits by workers and their survivors? How is this
done? Are lawsuits between workers of different companies also prohibited? Who is left out of the
prohibition and so can sue? There can be complications if some employers are under collective
liability and some are not, regarding lawsuits between the categories.
Law and Ethics (LE)
 Where a worker or the survivors can sue and can also take workers’ compensation benefits, how
is the “election” handled?
 Is the compensation authority’s right to subrogation clearly stated and how does it work?
 What are the limits, if any, to “third party” lawsuits?
 Who decides whether a worker or survivors will be allowed to sue a third party, the compensation
authority itself, or the courts?
 In addition to lost wages and non-economic loss (quality of life), workers will usually be entitled to
health care benefits. What are they entitled to? Obviously care by hospitals and doctors, but what
about all the other types of health care practitioners who might be able to assist? Does the
system cover drugs, personal attendants, transportation, prosthetic devices, and so on?
 What is the compensation authority’s relationship to the health care providers? Do the latter have
duties to report? Are they subject to a pre-set billing scheme? Who has the last word on
treatment, the health care professional or the workers’ compensation authority?
 Does the compensation authority have the right to ask the worker to submit to medical exams and
by whom? Does the employer have any such rights? What are the consequences if the worker
refuses to co-operate with such examinations?
 How is the medical file of the worker protected in terms of confidentiality?
 How is return to work handled, if at all? What are the employer obligations regarding
communication with the worker and the compensation authority? What obligations does the
worker have to provide assistance in finding suitable work to come back to?
 Return to work will likely be contingent on the worker having been employed for a certain length
of time, or on the size of the company. What are those limits?
 Are there different rules if the worker is capable of doing the pre-accident job as opposed to only
being able to do “light duty”? Are human rights protocols involving “essential duties”,
“accommodation”, and so on, applied to return to work?
Law and Ethics (LE)
 What are the safeguards to protect against an employer “complying” with return to work, and then
terminating the worker shortly thereafter?
 What if there is no job to return to? Does the compensation system allow for workers to be “re-
tooled” through education to do quite different jobs than the ones they did prior to the accident?
This might be called “labour market re-entry”.
Keeping in mind the caveat regarding the detail about workers’ compensation possible on the CRSP
exam, what can be said generally about the benefits typically provided by workers’ compensation
systems across Canada?
loss of earnings non-economic loss net average earnings

death benefits survivor benefits health care benefits
labour market re-entry vocational rehabilitation permanent impairment
percent impaired reassessments lump sum payment
commutation of payments garnishment of payments mediator
unfunded liability appeal tribunal restitution
mediation lien
The CRSP candidate will not be responsible for the details of a provincial workers’ compensation system,
but the candidate ought to be able to “spot the issue” in terms of issues that must be addressed one way
or the other under a compensation regime. These issues may include the following:
 What are the benefits the worker is entitled to: health care, return to work, labour market “re-
tooling”, wage replacement, non-economic loss (quality of life)?
 In terms of wage replacement, how is this calculated? Is the rate payable 75, 80, 85 % of pre-
injury earnings? ... or some other calculation? Is there a cap on the total amount of earnings that
are covered under workers’ compensation, and how is the cap calculated? Workers may have to
arrange for private disability coverage for income that is above the cap. How are variables such
as commission income handled?
 Is some money deducted from wage replacement by the compensation authority for a retirement
pension contribution?
 When does the wage replacement get cut off? When the worker’s post-accident income reaches
the pre-injury compensation? At retirement?
 Is there a distinction between wages lost when the worker is off work entirely and supplemental
wages, when the worker has returned to work but is earning less than the pre-injury job? Is the
worker topped up?
Law and Ethics (LE)
 Are the worker’s benefits protected by creditors? Are they taxed?
 How is loss of quality of life, or non-economic loss, handled? The worker should be getting
benefits for whatever the worker could have sued for at common law, and damages for loss of
quality of life are recoverable at common law. Is the calculation based on the worker’s age and
percent impaired? Does a younger worker get more than an older worker on the theory that he or
she has lost more enjoyment of life than the older worker? How and by whom is the “percent
impaired” calculated? When is the percent impaired calculated – at some measure of “maximum
medical recovery”?
 Who is entitled to survivor benefits if the worker dies?
 What are the categories of survivor benefits – wage replacement, non-economic loss (loss of
companionship), burial expenses, bereavement counselling, “labour market re-entry”?
 What are the factors that are considered in calculating the spouse’s wage replacement benefits –
worker’s earnings, age of surviving spouse? Does the older surviving spouse get more than the
younger surviving spouse?
 In what way does wage replacement for the surviving spouse vary depending on the presence of
children?
 Are handicapped or disabled children considered when it comes to cutting off wage replacement
as children reach maturity?
 How are multiple spouses dealt with? ... the deceased worker may have had more than one
spouse or ex-spouse dependant on him or her. Are same sex spouses covered?
 How is the non-economic “death benefit” for spouses calculated? Do younger surviving spouses
get more than older surviving spouses?
 How is inflation or cost of living handled by the compensation system?
 Can periodic payments be “commutated” to lump sums if the income stream is low?
Law and Ethics (LE)
There are other administrative issues under the compensation system besides benefits that the CRSP
candidate ought to be able to recognize:
 What are the requirements for new employers to register with the compensation authority? What
information must be provided initially and on a periodic basis? What records must the employer
keep for inspection by the compensation authority?
 How does the compensation authority figure out what an employer must pay? Is it based on
industrial and risk classes or categories?
 Can the premiums that employers pay into the compensation system be adjusted depending on
whether the employer’s accident record is better or worse than peers, sometimes called
“experience rating”? If all employers are paying the same rate, there is no economic incentive to
spend money to reduce accidents. Experience rating is an economic mechanism to motivate
employers to put OHS measures in place.
 Are there adjustments made to premiums based on a type of workplace inspection or

management system audit done by the compensation authority?
 Where multiple employers are involved in an accident or exposure can the compensation
authority statistically adjust the economic liability for the event?
 If some employers are not under a collective liability regime and so pay their workers directly for
their wage replacement, etc., are there still expenses of the compensation authority that such
employers must contribute to?
 Where a worker is exposed to a health hazard over the years in different workplaces, how are the
different employers made to contribute if the worker eventually develops a disease from the
hazard?
 What decisions of the compensation authority are reviewable within the administrative structure of
the authority? Is there a separate adjudicator set up to hear appeals of the authority’s decisions?
An appeals tribunal? Or, is there a pathway to the courts? If all decisions and appeals must stay
within the workers’ compensation system, are there finality or privative clauses preventing judicial
review? The CRSP candidate ought to be able to label the following, or similar provision, as a
“privative clause”:
No proceeding by or before the Board shall be restrained by injunction,

prohibition or other process or procedure in a court or be removed by
application for judicial review or otherwise into a court.
Law and Ethics (LE)
 What are the inspection and enforcement powers of the compensation authority?
 How are relations between employers and their contractors and the contractor’s employees
handled? Can the employer be liable for the premiums with respect to contractor’s employees on
site?
 What are the penalties under the regime for non-compliance?
 Are directors and officers of the corporation personally liable for non-compliance of the company?
The CRSP candidate ought to be able to label the following, or similar provision, as a version of
“directors and officers liability”:
If a corporation commits an offence under this Act, every director or officer of the
corporation who knowingly authorized, permitted or acquiesced in the commission of the
offence is guilty of an offence, whether or not the corporation has been prosecuted or
convicted.
Criminal Code of Canada – Criminal Negligence

Bill C-45 to amend the Criminal Code of Canada came into effect March 31st 2004. As such, Bill C-45
doesn’t exist anymore. Bill C-45 had the following purposes:
This enactment amends the Criminal Code to
(a) Establish rules for attributing to organizations, including corporations, criminal

liability for the acts of their representatives;
(b) Establish a legal duty for all persons directing work to take reasonable steps to
ensure the safety of workers and the public;
(c) Set out factors for courts to consider when sentencing an organization; and
(d) Provide optional conditions of probation that a court may impose on an

organization.
There was much misunderstanding about Bill C-45 and its changes. The Bill had little to do with personal
criminal negligence, but very much to do with the manner in which a corporation could be found to be
criminally negligent. The essential meaning of criminal negligence is found in section 219 of the Criminal
Code. This section was not changed by Bill C-45 and has existed for a very long time. Section 219(1) of
the Criminal Code:
Every one is criminally negligent who

(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons.
Law and Ethics (LE)
Individuals and corporations have been charged for workplace deaths under s.219 long before Bill C-45,
but with little success in terms of convictions.
The origins of Bill C-45 are in the mining disaster at the Westray coal mine in Nova Scotia in the early
1990s when 26 miners died in a fire and explosion. Two managers of the employer were charged with
criminal negligence but the cases were thrown out due to procedural issues. The union at the mine, the
Steelworkers, campaigned for a long time to bring C-45 about. The irony is that the Bill C-45 changes
would have increased the chances of convicting an already financially troubled corporation without much
real effect on the chances of convicting the senior officers of the company personally.
To review briefly the nature of criminal law as opposed to regulatory law, we know that only the federal
government has the power to make true criminal law. Criminal law has, as its essence, the requirement of
a mens rea element in the offence itself. The criminal must have mental involvement in the crime which
makes “wicked” as opposed to merely substandard behaviour. Mens rea is usually “intent” to do the actus
reus, or wrong deed. The mental element for criminal negligence is not intent but “wanton and reckless
disregard” for the life of another. It is not merely carelessness, which is the state of mind of someone who
is ordinarily negligent, it is actual knowledge of high risk and indifference as to whether someone is killed
or injured.
This mental state has to be coupled to one of two situations. First, the defendant’s actions themselves
caused the death or injury. The defendant would have to know that his actions were very likely to kill or
injure someone but carries on with the behaviour anyway. Chasing people with a forklift truck for fun in a
warehouse, or dropping bricks off a scaffold to see how fast others can run are examples. One can see
how rare such events would be. A worker is more likely to be charged with the “action” part of criminal
negligence than a supervisor or manager.
The second branch of criminal negligence is the “omission” part. “... in omitting to do anything that it is his
duty to do...” For this, the defendant must have a legal duty either at common law or under a statute. If
the defendant does nothing when he or she should have done something because of his or her duty, and
the individual does nothing (or not enough) while knowing that someone is facing high risk because of the
failure, then that would amount to criminal negligence. Bill C45 added a duty of the part of supervisors:
217.1 Every one who undertakes, or has the authority, to direct how another person does
work or performs a task is under a legal duty to take reasonable steps to prevent bodily
harm to that person, or any other person, arising from that work or task.
The Criminal Code defines “bodily harm” as:
Section 2. “Bodily harm” means any hurt or injury to a person that interferes with the
health or comfort of the person and that is more than merely transient or trifling in nature.
The only point to the s.217.1 duty is that it feeds into the phrase from s. 219:
“... in omitting to do anything that it is his duty to do...”
A breach of s. 217.1 on its own is not criminal negligence. If 217.1 is the duty in s. 219 that is breached
while showing “ ... wanton or reckless disregard for the lives or safety of other persons ..., then that would
be criminal negligence, because it would be a failure to do one’s duty knowing that there is high risk of
serious harm upon failing to do one’s duty.
Law and Ethics (LE)
Section 217.1 is helpful because it makes it easier to move into section 219, but its creation was not the
earth-shaking event that some people made it out to be. It is redundant as there already exist duties to
take reasonable care. Some jurisdictions have long had a duty on the part of supervisors or employees.
In Ontario:
s. 27 (2) ... a supervisor shall,

(c) take every precaution reasonable in the circumstances for the protection
of a worker.
Under the Canada Labour Code, Part II, a supervisor is part of the definition of “employer” and can be
charged personally with breach of the general duty in section 124:
124. Every employer shall ensure that the health and safety at work of every person
employed by the employer is protected.
As well, a supervisor has the employee general duty under the Canada Labour Code, Part II:
126. (1) While at work, every employee shall

(c) take all reasonable and necessary precautions to ensure the health and safety of
the employee, the other employees and any person likely to be affected
by the employee's acts or omissions;
There are many other duties of various workplace parties that can feed directly into section 219. Note that
common law duties for workplace safety feed into s. 219 as well.
Section 217.1 will be significant in jurisdictions where an express supervisor or worker general duty
clause never existed. It is also helpful in making it clear that the level of authority needed to be a
supervisor is not a “managerial function” test (which at least one province has maintained) but simply
“directing another’s work”, which makes a whole lot more practical sense. Section 217.1 has its greatest
effect in the non-legal sense of simply raising the profile of supervisor due diligence.
The main response to section 217.1, combined with section 219, should be better due diligence training
for anyone who directs work. If one is “duly diligent”, by definition one is not criminally negligent.
Particular emphasis should be placed on the role of knowledge in changing a supervisor’s due diligence
status. In circumstances where a worker or a worker rep informs a supervisor of something of great risk
within the supervisor’s jurisdiction the supervisor has been made vulnerable – now the supervisor knows.
Doing the reasonable thing to address the issue is both due diligence and a taking away of the “knowing
but indifferent” foundation of criminal negligence.
The most serious and far-ranging effect of Bill C-45 changes has been to the manner in which a
corporation can be criminally negligent. Historically, a corporation, which doesn’t have a mind of its own
and therefore can’t have it own mens rea, could be found guilty of a true criminal offence under the
“controlling mind and will test”. This meant finding a person who is directing the company to engage in
criminal activities to the benefit at least in part to the company. The mental state of the controlling mind
and will is essentially attributed to the legal fiction of the corporation. In the past, corporations have been
charged with criminal negligence for the death of workers. This is not new. The cases were rarely
convictions though, and this is what the changes brought by Bill C-45 might alter. There are three
definitions that Bill C-45 brought into the Code that are important:
Law and Ethics (LE)
”Organization” means:
1. A public body
2. Body corporate (a corporation)
3. Society
4. Company
5. Firm
6. Partnership
7. Trade union
8. Municipality, or
9. An association of persons that
(i) is created for a common purposes,
(ii) has an operational structure, and
(iii) holds itself out to the public as an association of persons.
Hence, the word used will be “organization” not “corporation”, corporations being a type of organization.
And a “representative” is broadly defined to mean any employee as well as a contractor.
“Representative”, in respect of an organization, means:

1. A director (on the board of directors)
2. Partner
3. Employee
4. Member
5. Agent, or
6. Contractor
Of the organization
And,
”Senior officer” means:

a representative who plays an important role in the establishment of an organization’s policies
or is responsible for managing an important aspect of the organization’s activities and,
in the case of a body corporate, includes
1. a director
2. the chief executive officer
3. the chief financial officer
The new test for criminal liability for an organization is in section 22.1:
22.1 In respect of an offence that requires the prosecution to prove negligence, an

organization is a party to the offence if
(a) acting within the scope of their authority
(i) one of its representatives is a party to the offence, or
(ii) two or more of its representatives engage in conduct, whether by act or omission,
such that, if it had been the conduct of only one representative, that
representative would have been a party to the offence; and
(b) the senior officer who is responsible for the aspect of the organization's activities
that is relevant to the offence departs - or the senior officers, collectively, depart -
markedly from the standard of care that, in the circumstances, could reasonably be
Law and Ethics (LE)
expected to prevent a representative of the organization from being a party to the

offence.
There are two branches to this (a)(i)(b) and (a)(ii)(b):
22.1 In respect of an offence that requires the prosecution to prove negligence, an

organization is a party to the offence if
(i) one of its representatives is a party to the offence, and
offence.
The individual representative is a “party to the offence” under the following circumstances:
s.21(1) Parties to offence – Every one is a party to an offence who

(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.
Under the above test, if a representative – any employee – is criminally negligent personally or aids and
abets another’s criminal negligence, and there is gross negligence by a senior officer in a managerial
sense, then the organization can be found criminally negligent. “Departing markedly” is a version of
wanton and reckless – a marked departure from the standard of the reasonable person. If this sounds
complicated, it is.
Example: A supervisor orders a worker to work in an elevated area without fall arrest equipment, knowing
the high risk to the employee. The supervisor is not just negligent, but criminally negligent. In addition, the
Vice President of Human Resources did not arrange for proper due diligence training for supervisors,
knowing that this was necessary, because without it, serious accidents were very likely to occur. Perhaps
previous accidents and an Order by an inspector or the recommendations of a consultant’s investigation
report made it very clear how necessary the supervisor training was. The VP’s failure is a marked
departure from what a reasonable VP’s response would be in the circumstances.
The second branch is even more complex:
22.1 In respect of an offence that requires the prosecution to prove negligence, an organization is a party
to the offence if
(ii) two or more of its representatives engage in conduct, whether by act or omission,
such that, if it had been the conduct of only one representative, that
representative would have been a party to the offence; and
offence.
Law and Ethics (LE)
Example: A manager knows that a lifting device was never tested upon installation. A maintenance
worker knows the lifting device hasn’t been maintained properly. A supervisor orders material to be lifted
knowing the operator of the lift device is not competent, and the operator operates the lift over the heads
of co-workers. The load drops and kills someone. No one knows what anyone else knows. Plus, the
general manager failed to require an audit of the preventative maintenance program and failed to ensure
competent operators of lift devices, knowing that these failures could result in serious harm – a marked
departure from what a reasonable maintenance manager would do. The various people in the scenario
other than the maintenance manager have their mens rea and behaviour aggregated into one fictional
person, and if that fictional person would have been criminally negligent, then the corporation can be
criminally negligent.
The second branch test can be called the “aggregated mens rea” test. This was the truly novel creation of
Bill C-45. It means that knowledge of high risk from groups of people can be aggregated together. A
company with 500 employees has an enormous number of combinations of three, four or five people. It
now becomes critical that individuals do not harbour bits of knowledge about high risk, and that methods
of encouraging people to reveal their knowledge are developed. Further, a good OHS management
system should go a long way to prevent the kind of gross managerial failure of the senior officer that is a
necessary ingredient. The second branch test, if aggressively used, could likely result in a significant
increase in the number of corporations convicted of criminal negligence.
Section 219 is connected to the outcomes in sections 220 and 221. This where we find the penalties:
Section 220. Every person who by criminal negligence causes death to another person is guilty
of an indictable offence and liable
(a) Where a firearm is used in the commission of the offence, to imprisonment for life and
to a minimum punishment of imprisonment for a term of four years; and
(b) In any other case, to imprisonment for life.
Section 221. Every one who by criminal negligence causes bodily harm to another person is
guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years.
The potential fines for a corporation upon conviction for criminal negligence are virtually unlimited.
Competency LE3: Environmental Law

The CRSP should be able to demonstrate an understanding of environmental law. We will examine
common law environmental lawsuits as well as environmental statutes. Initially it is worthwhile comparing
OHS law and environmental law; the differences and similarities are enlightening.
What is the overall purpose of environmental law? One might expect environmental law to be designed to
protect the environment for its own sake, without regard to human interests. Many environmental statutes,
however, emphasize protecting human interests (health, safety, comfort, use of property, damage to
property). Anti-pollution statutes (air and water pollution) and the regulation of toxic materials handling
(e.g. pesticides) are aimed largely at protecting human health. Where environmental laws protect habitats
and species the direct concern is not with human interests but the underlying assumption is that the long-
term viability of ecosystems is critical for human welfare. Laws that are primarily about protecting human
health and safety from hazards in environmental media could be considered “public health law” rather
than “environmental law”.
Law and Ethics (LE)
Common law refers to legal rules and principles found in the cases decided by judges in court. Statutory
law refers to legal rules and principles found in statutes (Acts) and in the regulations made under those
statutes. Legislatures make statutory law (although federal and provincial cabinets pass the regulations
authorized to be made by the legislatures in the statutes).
An initial distinction is between federal and provincial/territorial environmental statutes. Constitutionally,

the “environment” is considered to be such a broad and “amorphous” subject that it is one of the few
subjects that are shared between the federal and provincial jurisdictions. Both levels of government can
pass environmental laws covering the same issue. If there is a conflict, then the “paramountcy doctrine”
applies – one follows the federal statute.
The range and diversity of environmental statutes is great even within jurisdictions. Since, however, the
content of provincial and territorial environmental statutes varies across Canada they cannot be
appropriate topics for the CRSP exam. It can be noted that provinces have jurisdiction over property and
“civil rights” (meaning the common law” and can therefore pass laws to regulate compensation for
environmental harm, whereas federal environmental laws are very limited in this area.
Federal environmental statutes cover many types of environmental concerns. There are classic “anti-
pollution” laws which can be aimed at specific environmental media (air, land, water). There is federal
legislation for “environmental assessment” which is more proactive. Some statutes protect specific
species or types of habitats. The major requirements for classifying, packaging and labeling
environmentally hazardous substances are found in federal statutes.
Comparison: OHS and Environmental Law
If an OHS professional has a solid understanding of OHS law, then environmental law will not be difficult.
OHS law and environmental law are both regulatory laws and many mechanisms, processes and
concepts are similar. The following is a comparison between OHS and environmental law.
Constitutional status. OHS law and environmental law differ. A workplace is either a federally-regulated
workplace or a provincially regulated workplace for OHS. “Environment” is a “shared subject matter”
constitutionally. This means a workplace can be under provincial and federal environment laws
simultaneously. A spill of chemicals into a lake can result in a charge under a provincial anti-pollution
statute as well as a charge under the federal Fisheries Act. The “paramountcy doctrine” applies to shared
subjects. If a provincial and federal environmental Act conflict, the federal one takes priority (not the more
stringent one).
Statutory law. Both OHS law and environmental law consist primarily of statutory law; law found in Acts
and regulations as opposed to case law. OHS and environmental Acts would be viewed as “public
welfare” legislation.
Common law. Both OHS law and environmental law have a common law aspect to them, as there is the
possibility of lawsuits between private entities; however, because workers’ compensation legislation
prohibits most lawsuits by workers and their families, there are relatively few OHS lawsuits compared with
environmental lawsuits. There is no equivalent prohibition on the neighbours of a workplace suing the
employer for compensation for harm done to them by the escape of a hazardous material from the
workplace.
Law and Ethics (LE)
Causes of action. Negligence is the primary cause of action in OHS lawsuits. Environmental lawsuits
can involve causes of action such as negligence, nuisance, trespass, and strict liability (Ryland &
Fletcher).
Variety of Acts. Provincial jurisdictions usually have an OHS Act and a workers’ compensation Act or an
Act that combines both prevention and compensation. Some jurisdictions have a separate Mine Safety
Act. There are subsidiary OHS Acts such as non-smoking legislation. Provinces will usually have a large
number of environmental statutes covering, e.g.:
 water pollution
 air pollution
 land use (planning)
 habitat and species protection
 game and fish.
Federal environmental legislation is diverse, starting with the Canadian Environmental Protection Act
(CEPA), but including:
 Pest Control Products Act (PCPA)

 Transportation of Dangerous Goods Act (TDGA)
 Clean Air Act
 Clean Water Act
Environmental law involves more Acts and regulations than OHS law with environmental Acts being more
diverse in subject matter. CEPA is not as important as its title sounds. One aspect of CEPA that is of
importance to the CRSP is “new chemical notification”. If the CRSP is in charge of the WHMIS/GHS
program, then the CRSP is likely the person who will have to consider whether a chemical being imported
or made for the first time is actually “new to Canada”. How does one tell? Under CEPA there is a
domestic substances list that should be checked. If a chemical is new then the CRSP would be involved
in putting together a required set of information to be supplied to Environment Canada before
manufacturing or importation can get underway.
Historically one of the most important federal environmental statutes has been the Fisheries Act which
protects the quality of water and fish habitat. It applies to both salt and freshwater. A “fish” is almost any
kind of aquatic creature far beyond what anyone would normally call a fish.
Administrative law. There are administrative boards and tribunals in both OHS and environmental law.
Workers’ compensation and labour relations boards are far older and much larger in size and volume of
case load than environmental boards and tribunals. Nothing in environmental administrative law comes
close to the size and complexity of a workers’ compensation board or a labour relations board.
The general principles of administrative law apply to both OHS and environmental boards and tribunals:
 rationale for specializing expert adjudication

 relative informality of procedural rules and evidentiary rules
 nature of judicial review of administrative decisions.
Law and Ethics (LE)
Regulatory regimes. OHS and environmental laws have regimes in which there are relatively large
Ministries or Departments involved with many inspectors or officers. Such inspectors/officers engage in
similar activities:
 inspection
 investigations
 issue orders and directions
 initiate and support prosecutions by the Crown.
IRS. OHS Acts in Canada are based on the IRS philosophy that the employer and individuals in the
workplace are primarily and directly responsible for OHS activities. Most duties in environmental law are
not broken into duties for specific categories of people but are very generic—“no person shall…”
Due Diligence. The concept of due diligence is very similar in both OHS and environmental law in terms
of the kinds of factors one considers in determining what is reasonable (e.g. risk). A major difference is
that due diligence in environmental law is almost always about the organization’s due diligence. In OHS
law, individuals have to be concerned about their own personal due diligence account far more than
under environmental law.
Systems. Both OHS law and environmental law identify management systems consisting of policies,
programs, procedures and auditing to be the principal means by which compliance by the organization as
a whole is ensured.
Intra-Organization. The organization is a “black box” in environmental law. In OHS law, worker health
and safety representatives and labour-management health and safety committees have powers and
duties not seen in the environmental law. OHS law relies more on internal auditing than environmental
law. In OHS law, it is understood that issues should be handled first by workplace parties, calling in the
inspector or officer only when internal resolution isn’t happening.
Enforcement Styles. Since there is no concept of the IRS in environmental law, it is more likely that
environmental inspectors will seem themselves more as “police” and “enforcers” than as “auditors”. OHS
Inspectors are more inclined to view contraventions as failures of the IRS.
Status of OHS and Environmental Coordinators/Managers. In OHS law, the OHS coordinator or
manager is relatively invisible. It’s understood that OHS authority and responsibility are embedded in
everyone’s job and then OHS professional’s role is supportive and indirect. It is almost unheard of for
OHS regulators to prosecute OHS managers. Without an IRS philosophy, it is more likely that
environmental Inspectors and regulators will see environmental managers as being directly responsible
for environmental management. It is more likely that environmental professionals are seen by
environmental inspectors as possible defendants.
Approvals. Environmental law regimes have more external approval processes than are found in OHS
regimes. The IRS philosophy means issues are more likely to be resolved in the workplace. There are
fewer (or no) internal “watchdogs” in environmental regimes, so there are more processes where a plan
or program has to be reviewed by an external environmental body.
D & O Liability. In spite of the lack of an IRS, most environmental Acts have liability for directors and
officers personally, as do OHS Acts.
Law and Ethics (LE)
Penalties. As a general rule the fines under environmental Acts tend to be much higher than the fines
found in OHS Acts. This may be because:
 the public cares more about the environment than it does about workers’ safety
 there are broad-based, well-funded environmental lobby groups pushing for higher fines
 many environmental Acts are more recent than OHS Acts and OHS penalties haven’t been
modernized, or because
 the financial stakes are higher in environmental health matters so corporate fines have to be
higher in order to be an effective deterrent.
Deterrence. The concepts of specific and general deterrence function the same way in both areas of law.
However, due to the IRS, individual workers, supervisors and managers are more aware of their personal
legal liability under OHS law and so convictions of individuals have more of a deterrent effect on
individuals than convictions of corporations do on individuals.
Environmental Lawsuits
Many accidents involve environmental releases and harm to the neighbours, who are not prohibited by
workers’ compensation statutes from suing. The CRSP should assist the company with advice about
maintenance, inspections, investigations, etc to help avoid environmental lawsuits, as well as OHS and
environmental prosecutions. We want to be clear on the latter point – the company may be prosecuted
under federal or provincial or territorial environmental statutes, but we are concerned here with lawsuits,
not prosecutions.
The simple scenario here is that a facility has had an accident and there has been a sudden release of a
hazardous (or very annoying) material (or energy form) and this release has harmed the neighbours in
some way. As a variation of this scenario, we also have a situation where the release of material or
energy is on a slow, chronic basis, which has harmed or annoyed the neighbours. The neighbours,
whether they be residential, commercial, or other, may have the ability to sue the organization
responsible for the release. They have to fit their lawsuit into a recognized “cause of action”. More than
one cause of action can be applicable to any given situation. Let’s examine each of the possible
environmental causes of action.
1. Strict Liability – The Rule in Rylands and Fletcher
In England in the 19th century, Rylands dammed up water in a reservoir. It broke loose and flooded
Fletcher’s coal mine. Fletcher sued Rylands. There was no sign of negligence on Rylands’ part. The
House of Lords decided that the common law of escaping animals should be expanded to escaping
substances. The new rule became in Lord Cranworth’s words:
"If a person brings, or accumulates, on his land anything which, if it should escape, may
cause damage to his neighbour, he does so at his peril. If it does escape and cause
damage, he is responsible, however careful he may have been, and whatever
precautions he may have taken to prevent the damage."
The point is, the defendant is liable even if there was no negligence on the defendant’s part. Rylands and
Fletcher is powerful precedent for hundreds of cases where toxic materials stored on the premises are
released and harm the neighbours. Due diligence is not a defence in these cases. Due diligence will only
help reduce the risk that you have a release in the first place.
Law and Ethics (LE)
There are still defences available:
 Consent of the Plaintiff
express consent
implied consent (difficult to prove)
 Default of the Plaintiff
similar to contributory negligence, e.g. if Fletcher had carelessly worked his mine under
Rylands’ reservoir.
 Act of God
e.g. unprecedented rainstorm causes a flood, or lightning, hurricane, earthquake.
 Deliberate Acts of Third Persons
e.g. sabotage
 Legislative Authority
the activity is authorized by the legislature -- but usually the authorization has to be very
specific.
2. Trespass
Here we refer not to a person trespassing, but the dumping of material on someone else’s property.
“Every invasion of property, be it ever so minute, is a trespass.” No damage need be done by the
trespass. No knowledge or intention is necessary. Toxic waste dumped on unused property – this may be
the only cause of action the land owner can use.
3. Private Nuisance
Private nuisance is “unreasonable interference with use or enjoyment of property”. Nuisance describes a
type of harm that is suffered rather than a kind of conduct that is forbidden. Things which have been
found to interfere with enjoyment of property in particular cases are things which we would usually think of
as public health hazards:
 noise
 vibration
 noxious odours
 air pollution
 water pollution
 dangerous structures
The following are some of the elements of private nuisance:

Law and Ethics (LE)
 The harm is normally caused indirectly, in contrast to trespass, which arises from direct, physical
invasion.
 Actual damage must be shown, unlike trespass.
 Responsibility for private nuisance is not restricted to occupiers of adjoining lands.
 What is "unreasonable interference"? The court balances:
gravity of vs. utility of

the harm the defendants
The interference must be substantial; it cannot just be a disturbance of a person's peace of mind.
 Examples of private nuisance:
a. Chemicals emitted from the Defendants' foundry damaged paint on vehicles in the
Plaintiff's yard.
b. Defendant's driving of trucks on a dirt road damaged a house and made it impossible to
cultivate land.
 Damages for injury to health may be recovered in an action for nuisance if there is also
interference with the use and enjoyment of land.
 Nuisance is a "continuing wrong". That is, it must be a state of affairs which continuously or
repeatedly interferes with the Plaintiff's enjoyment of land. Only rarely will a single occasion be
considered a nuisance.
 The Court will consider the character of the locale when deciding if there is unreasonable
interference. For example:
a. Noise coming from a stone-cutting operation in a commercial railway area was not
unreasonable.
b. Noise from an asphalt plant in a "mixed use" area was not a nuisance in the day, but the
Court considered it a nuisance at night.
 In Canada, it is not a defence that the nuisance was there before the plaintiff arrived on his land.
For example, a pig farm might have operated for 100 years, but if the suburbs expand around the
pig farm, the homeowners could bring an action in nuisance over the strong odours from the pig
farm. In most Canadian jurisdictions now, this has been remedied by statutes called “farm
practices protection” legislation – over-riding the ability of new-comers to rural areas to sue
farmers in nuisance. These statutes are of no help to manufacturers.
 A Plaintiff with an "abnormal sensitivity" to something may not succeed in nuisance. It is an
objective test whether interference is unreasonable.
 It is not necessary to show that the conduct of the Defendant was negligent or intentional -- "fault"
is not necessary in the law of nuisance.
There are defences to nuisance lawsuits:
 Defence of Legislative Authority

Law and Ethics (LE)
If a nuisance is the inevitable consequence of an activity which has been legislatively authorized,
no action will lie. The intention of the legislature is paramount.
 Prescription
A prescriptive right may be acquired to continue to commit certain nuisances, if they are done
continuously and openly for 20 years.
 Acquiescence
There will be no nuisance if there is overt consent or active encouragement of the Defendant's
activity
 Act of a Third Party
The intervening act of a third party may be a defence if it is unforeseeable.
In nuisance cases the plaintiff is often more interested in getting an injunction shutting down the operation
rather than getting damages in compensation.
4. Negligence
Negligence is conduct falling below the standard established for the protection of others against
unreasonable risk of harm. This is the biggest, most flexible area of the common law. It is the origin of our
concept of “due diligence”. “Negligence” and “due diligence” are the mirror opposites of each other.
A cause of action for negligence arises if the following elements are present:
 The claimant must suffer some damage.

 The damage suffered must be caused by the negligent conduct of the Defendant.
 The Defendant's conduct must be negligent, that is, in breach of the standard of care set by law.
 There must be a duty recognized by the law to avoid this damage.
 The conduct of the Defendant must be a proximate cause of the loss or, stated another way, the
damage should not be too remote a result of the Defendant's conduct.
 The conduct of the Plaintiff should not be such as to bar his recovery, that is, he must not be
guilty of contributory negligence and he must not voluntarily assume the risk.
The standard of care in negligence law is an objective standard. Conduct is negligent if the risk outweighs
the social value of the activity in terms of the purpose and cost of the activity. The perspective used is
“what would the reasonable person or reasonable peer have done in the circumstances?”
The “reasonable person” test is the same one used in due diligence. The reasonable person is a legal
fiction – a hypothetical person who is sane, sober, mature, reasonably well-informed, well-intentioned,
calm, detached, not biased, etc. No one you actually know. The “reasonable peer” is the reasonable
person plus the knowledge, skill experience expected of a person in that profession or occupation.
5. Riparian Rights
Riparian rights refer to the common law rights and duties associated with rivers and lakes. Many of our
concerns have been subsumed in environmental regulatory law. You are more likely to call the Ministry of
Law and Ethics (LE)
the Environment about polluted water flowing past your property than you are to track down the polluter
and sue him.
To summarize very briefly, at common law, a person who occupies land next to flowing water has a right
not to have the quality of that water diminished by a party upstream. Second, a person on land next to
flowing water has a right not to have the quantity of that water flow diminished by the activities of a party
upstream (this could occur by diverting the water or pumping it out of the water body).
The person harmed could obtain damages in compensation, but the primary objective was to obtain an
order of the Court directed at the offending party requiring the latter to remedy the situation.
Today, provincial and federal Acts regulate water quality, water habitats, activities on river banks (zoning,
dumping), the diversion or other modifications of water flow, and the amount of water than can be taken
from water bodies for different purposes.
injunction Act of God negligence

reasonable person standard of care duty of care
cause of action nuisance trespass
strict liability Rylands and Fletcher remedy
riparian rights
Competency LE4: Duties of the Workplace Parties

The CRSP should be able to demonstrate an understanding of the duties of the workplace parties in all
applicable jurisdictions.
There are some common misunderstandings about what we mean by “workplace parties” in the first
place. A proper understanding of the IRS tells us that the primary workplace parties – the parties with
direct responsibilities for OHS, and the most important responsibilities – are the employer and then the
individuals at each level of authority in the organization: worker, supervisor, manager, officer and director.
The “workplace parties” also include those with indirect or contributive responsibilities such as worker
representatives and health and safety committees. Many people, however, refer to the workplace parties
as being two groups: “employer and employees” or “labour and management”. The IRS philosophy and
OHS Acts based on the IRS are not about two groups but are largely about individuals. The health and
safety committee is structured in a bipartite manner, but the committee is not the central element in the
IRS and it does not have the diverse and serious duties that the employer and individuals have. When
people refer to two groups as the workplace parties they are either confusing OHS law with labour
relations law or they mistakenly believe the bipartite committee is the central element of the IRS (or they
believe both).
In some jurisdictions in Canada, there is a single Act which governs both compensation and prevention.
The two functions may then be addressed in regulations focussing on compensation or prevention. Other
jurisdictions have separate Acts for compensation and prevention. The federal sector has the Canada
Labour Code, Part II for prevention, and, as mentioned, relies on the provincial workers’ compensation
regimes for compensation purposes. The compensation/prevention distinction can be blurred where
compensation legislation uses economic leverage for prevention purposes.
Law and Ethics (LE)
By “prevention legislation”, whether separate statutes or not, we mean those statutory provisions setting
out duties and rights for employers and individuals for the purpose of proactively taking steps to prevent
accidents and exposures from occurring.
Most prevention legislation in Canada is based directly or indirectly on a pre-legal philosophy of

accident/exposure prevention called the “Internal Responsibility System” (IRS). This means that the
responsibility for OHS is internal to the workplace and internal to the job of everyone in the organization.
The degree to which a particular OHS Act is based on the IRS is the degree to which the Act raises the
“corporate veil” around an organization and sets out specific duties for individuals – workers, supervisors,
managers, officers, directors, and others. The three legal rights – the right to know about hazards, the
right to refuse unsafe work, and the right to participate through worker representatives and a health and
safety committee – are important but secondary features of the system.
Canada Labour Code Definitions
The definitions in an Act are critical. The legislature can do anything with definitions. If a word is
undefined, use the dictionary. If the word is defined, then it does not have the usual dictionary definition.
You are very likely to go astray if you are reading a section in the Act that uses the word and you don’t
know it’s defined with a non-dictionary meaning. Consider that definitions can create a separate and
peculiar legal universe. Do not transfer defined words between Acts. One should probably make it a
practice to cross reference key definitions with sections they appear in, or underline key defined terms in
sections where they appear.
The Canada Labour Code, Part II definitions are below. Often one knows what an Act applies to and what
it doesn’t apply to by the time one has left the definition section. It is often enlightening to see how words
in another jurisdiction’s OHS Act are defined – it can give you an insight into your own Act.
Definitions
122. (1) In this Part,
“appeals officer'' means a person who is designated as an appeals officer under section
145.1;
"Board" means the Canada Labour Relations Board continued by section 9;
"collective agreement" has the same meaning as in section 166;
Adanger@ 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;(new in 2014)
"employee" means a person employed by an employer;
"employer" means a person who employs one or more employees and includes an
employers' organization and any person who acts on behalf of an employer;
Law and Ethics (LE)
"hazardous substance" includes a controlled product and a chemical, biological or

physical agent that, by reason of a property that the agent possesses, is hazardous to the
safety or health of a person exposed to it;
“health and safety representative'' means a person who is appointed as a health and
safety representative under section 136;
“policy committee'' means a policy health and safety committee established under section
134.1;
“prescribe'' means prescribe by regulation of the Governor in Council or determine in

accordance with rules prescribed by regulation of the Governor in Council;
“safety'' means protection from danger and hazards arising out of, linked with or occurring
in the course of employment;
"work place" means any place where an employee is engaged in work for the employee's
employer.
“work place committee'' means a work place health and safety committee established
under section 135.
Idem
(2) In this Part, “hazardous product”, “label” and “safety data sheet” have the same
meanings as in section 2 of the Hazardous Products Act.
The duties of the workplace parties are the primary way that the IRS philosophy is given legal form. The
expectation is that if everyone in the workplace is fulfilling his or her own personal duties, as well as
acting as an agent to fulfil the duties of the employer, where appropriate, then the risk of an accident or
an exposure is pushed down as low as it can reasonably go in the circumstances. “Due diligence” is the
standard of performance. How far does one go with a duty? Take every precaution reasonable in the
circumstances to avoid the harm that the duty is aimed at. Sometimes due diligence terminology is built
into the wording of a duty and sometimes it is implied.
The duties in the Canada Labour Code, Part II apply across Canada, although they apply only to the
parties in federally regulated workplaces. All OHS professionals should have some basic familiarity with
federal provisions. For the purposes of a trans-Canada OHS law course, or a trans-Canada examination
(the CRSP exam), the federal duties can be used as examples. For law reform purposes, and for the
benefit that inter-jurisdictional comparison can give to statutory interpretation, CRSPs should have some
exposure to general patterns in the construction of duties in other jurisdictions.
Law and Ethics (LE)
duty right delegation

regulation dependant regulation independent general duty clause
basket clause due diligence duty specific duty
employer employee directors and officers liability
Canada Labour Code, Part II
Duties in General
The following are several points about statutory duties:
 They can be personal – too many people still think it’s just the employer who has duties. Under
the IRS philosophy everyone in the workplace should have duties.
 Can't be delegated to avoid liability. One can delegate work, but this may only create duties in
others. To avoid the duties of a worker or a supervisor one would have to stop being a worker or
a supervisor.
 Can't be contracted out of – same as above
 Interlocked – employer, supervisor and worker duties tend to be closely related or integrated.
Employer requirements under its general duty clause often slide over and become the content of
supervisor and worker duties. This idea is illustrated in Figure 18.
 Some duties are "regulation dependent" -- where the duty says "as prescribed". The duty in the
Act is meaningless until a regulation is passed with the content.
 Some are "regulation independent" – they don’t say “as prescribed”. They stand alone. They
would have content even if there were no regulations. They often need a lot of effort interpreting
and applying. They tend to be very broad. General duty clause and due diligence duty clauses
are of this type.
 The duties are broad and flexible and must be applied to any given situation.
 The courts have interpreted some duties to mean other than what they seem to say on the
surface -- "judicial (or common law) interpretation"
 Due diligence is a defence to a charge that one has breached a duty
Figure 18. Inter-locking duties.
Employer Duties
The employer duties in OHS legislation are the most onerous and the most numerous of all sets of duties.
The most important employer duty is the employer’s “general duty clause” discussed above. This duty
covers hazards that are not covered in the regulations and so is open-ended. It requires considerable on-
going effort to identify unusual hazards and to develop specific controls.
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The second major category of employer duties is the “regulation dependent” duties. They either expressly
mention the regulations or they indicate that the employer must do “as prescribed” in the regulations. Very
often there are regulations that are “sector specific” and only employers in that sector (e.g. mining or
construction) will have those duties. It should be noted that in some Canadian jurisdictions mining safety
is found in a separate Act rather than in a mining regulation under a generic OHS Act.
There are other duties in OHS statutes that are neither general duty clauses nor regulation dependant
duties. They are “regulation independent” but are much more specific than the general duty clause.
Examples are duties to assist health and safety committees or the government inspector/officer or to
handle processes (such as work refusals) in particular ways. One important way to classify these duties is
to identify the employer duties which are necessary to ensure that the worker’s three rights are respected.
The CRSP candidate should be able to “spot the general duty clause”. The following one is from the
Canada Labour Code, Part II:
General duty of employer

124. Every employer shall ensure that the health and safety at work of every person
employed by the employer is protected.
The Ontario general duty clause states:
s. 25 (2) ... the employer shall

(h) take every precaution reasonable in the circumstances for the protection of a
worker;
Notice in the above:
 no reference to the regulations

 no specific hazard
 no specific control
 general obligation to take reasonable care
OHS statutes do have plenty of specific duties for the employer. The following is the main set of duties for
employers under the Canada Labour Code, Part II. Most other jurisdictions are less verbose. See if you
can:
 identify the duties that are regulation independent

 identify the duties that are regulation dependent
 identify the broadest duties and most technical duties
 figure out what is implied or inferred by way of due diligence for each duty
 identify “programs” that must be developed in the OHS management system to comply
Specific duties of employer

125. (1) Without restricting the generality of section 124, every employer shall, in respect
of every work place controlled by the employer and, in respect of every work activity
carried out by an employee in a work place that is not controlled by the employer, to the
extent that the employer controls the activity,
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(a) ensure that all permanent and temporary buildings and structures meet the
prescribed standards;
(b) install guards, guard-rails, barricades and fences in accordance with prescribed
standards;
(c) investigate, record and report in the manner and to the authorities as prescribed
all accidents, occupational diseases and other hazardous occurrences known to the
employer;
(d) post in a conspicuous place accessible to every employee
(i) a copy of this Part,
(ii) a statement of the employer’s general policy concerning the health and safety at work
of employees, and
(iii) any other printed material related to health and safety that is prescribed or that may
be directed by the Minister;
(e) make readily available to employees for examination, in printed or electronic
form, a copy of the regulations made under this Part that apply to the work place;
(f) if a copy of the regulations is made available in electronic form, provide
appropriate training to employees to enable them to have access to the regulations and,
on the request of an employee, make a printed copy of the regulations available;
(g) keep and maintain in prescribed form and manner prescribed health and safety
records;
(h) provide prescribed first-aid facilities and health services;
(i) provide prescribed sanitary and personal facilities;
(j) provide, in accordance with prescribed standards, potable water;
(k) ensure that the vehicles and mobile equipment used by the employees in the
course of their employment meet prescribed standards;
(l) provide every person granted access to the work place by the employer with
prescribed safety materials, equipment, devices and clothing;
(m) ensure that the use, operation and maintenance of the following are in
accordance with prescribed standards:
(i) boilers and pressure vessels,
(ii) escalators, elevators and other devices for moving persons or freight,
(iii) all equipment for the generation, distribution or use of electricity,
(iv) gas or oil burning equipment or other heat generating equipment, and
(v) heating, ventilation and air-conditioning systems;
(n) ensure that the levels of ventilation, lighting, temperature, humidity, sound and
vibration are in accordance with prescribed standards;
(o) comply with prescribed standards relating to fire safety and emergency
measures;
(p) ensure, in the prescribed manner, that employees have safe entry to, exit from
and occupancy of the work place;
(q) provide, in the prescribed manner, each employee with the information,
instruction, training and supervision necessary to ensure their health and safety at work;
(r) maintain all installed guards, guard-rails, barricades and fences in accordance
with prescribed standards;
(s) ensure that each employee is made aware of every known or foreseeable health
or safety hazard in the area where the employee works;
(t) ensure that the machinery, equipment and tools used by the employees in the
course of their employment meet prescribed health, safety and ergonomic standards and
are safe under all conditions of their intended use;
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(u) ensure that the work place, work spaces and procedures meet prescribed
ergonomic standards;
(v) adopt and implement prescribed safety codes and safety standards;
(w) ensure that every person granted access to the work place by the employer is
familiar with and uses in the prescribed circumstances and manner all prescribed safety
materials, equipment, devices and clothing;
(x) comply with every oral or written direction given to the employer by the Minister
or an appeals officer concerning the health and safety of employees;
(y) ensure that the activities of every person granted access to the work place do not
endanger the health and safety of employees;
(z) ensure that employees who have supervisory or managerial responsibilities are
adequately trained in health and safety and are informed of the responsibilities they have
under this Part where they act on behalf of their employer;
(z.01) ensure that members of policy and work place committees and health and safety
representatives receive the prescribed training in health and safety and are informed of
their responsibilities under this Part;
(z.02) respond as soon as possible to reports made by employees under paragraph
126(1)(g);
(z.03) develop, implement and monitor, in consultation with the policy committee or, if
there is no policy committee, with the work place committee or the health and safety
representative, a prescribed program for the prevention of hazards in the work place
appropriate to its size and the nature of the hazards in it that also provides for the
education of employees in health and safety matters;
(z.04) where the program referred to in paragraph (z.03) does not cover certain hazards
unique to a work place, develop, implement and monitor, in consultation with the work
place committee or the health and safety representative, a prescribed program for the
prevention of those hazards that also provides for the education of employees in health
and safety matters related to those hazards;
(z.05) consult the policy committee or, if there is no policy committee, the work place
committee or the health and safety representative to plan the implementation of changes
that might affect occupational health and safety, including work processes and
procedures;
(z.06) consult the work place committee or the health and safety representative in the
implementation of changes that might affect occupational health and safety, including
work processes and procedures;
(z.07) ensure the availability in the work place of premises, equipment and personnel
necessary for the operation of the policy and work place committees;
(z.08) cooperate with the policy and work place committees or the health and safety
representative in the execution of their duties under this Part;
(z.09) develop health and safety policies and programs in consultation with the policy
committee or, if there is no policy committee, with the work place committee or the health
and safety representative;
(z.10) respond in writing to recommendations made by the policy and work place
committees or the health and safety representative within thirty days after receiving them,
indicating what, if any, action will be taken and when it will be taken;
(z.11) provide to the policy committee, if any, and to the work place committee or the
health and safety representative, a copy of any report on hazards in the work place,
including an assessment of those hazards;
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(z.12) ensure that the work place committee or the health and safety representative
inspects each month all or part of the work place, so that every part of the work place is
inspected at least once each year;
(z.13) when necessary, develop, implement and monitor a program for the provision of
personal protective equipment, clothing, devices or materials, in consultation, except in
emergencies, with the policy committee or, if there is no policy committee, with the work
place committee or the health and safety representative;
(z.14) take all reasonable care to ensure that all of the persons granted access to the
work place, other than the employer's employees, are informed of every known or
foreseeable health or safety hazard to which they are likely to be exposed in the work
place;
(z.15) meet with the health and safety representative as necessary to address health
and safety matters;
(z.16) take the prescribed steps to prevent and protect against violence in the work
place;
(z.17) post and keep posted, in a conspicuous place or places where they are likely to
come to the attention of employees, the names, work place telephone numbers and work
locations of all of the members of work place committees or of the health and safety
representative;
(z.18) provide, within thirty days after receiving a request, or as soon as possible after
that, the information requested from the employer by a policy committee under
subsection 134.1(5) or (6), by a work place committee under subsection 135(8) or (9) or
by a health and safety representative under subsection 136(6) or (7); and
(z.19) consult with the work place committee or the health and safety representative on
the implementation and monitoring of programs developed in consultation with the policy
committee.
Exception
(2) Paragraph (1)(z.17) does not apply to an employer who controls
(a) a single work place at which fewer than twenty employees are normally
employed, if all of those employees and the health and safety representative normally
work at the same time and in the same location; or
(b) a single work place at which only one employee is normally employed.
Worker or Employee Duties

Some OHS Acts refer to “employees” and others refer to “workers”. Usually the latter term can include
people in the workplace who are not employees of the employer in control of that workplace. In general,
virtually any individual in the workplace will have worker or employee duties. A supervisor or the president
will usually be counted as a worker or an employee and so have the worker or employee duties. A
common feature of OHS legislation is that individuals may be “wearing more than one hat” when it comes
to duties; e.g. both worker and supervisor duties.
In most jurisdictions the worker will have a general duty clause. This is the case for employees under the
Canada Labour Code, Part II. This means that workers as individuals have to go beyond compliance with
the regulations and the employer’s rules and may have to identify problems and come up with solutions
on their own. In addition, workers will have regulation dependent duties and some regulation independent
duties. Duties of workers are usually focused on following procedures and using and wearing protective
devices and clothing.
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The following are the employee duties from the Canada Labour Code, Part II. Can you find the general
duty clause for employees? Does it contain a duty to look out for visitors (non-workers)?
Health and safety matters

126. (1) While at work, every employee shall
(a) use any safety materials, equipment, devices and clothing that are intended for
the employee's protection and furnished to the employee by the employer or that are
prescribed;
(b) follow prescribed procedures with respect to the health and safety of employees;
(c) take all reasonable and necessary precautions to ensure the health and safety of
the employee, the other employees and any person likely to be affected by the
employee's acts or omissions;
(d) comply with all instructions from the employer concerning the health and safety
of employees;
(e) cooperate with any person carrying out a duty imposed under this Part;
(f) cooperate with the policy and work place committees or the health and safety
representative;
(g) report to the employer any thing or circumstance in a work place that is likely to
be hazardous to the health or safety of the employee, or that of the other employees or
other persons granted access to the work place by the employer;
(h) report in the prescribed manner every accident or other occurrence arising in the
course of or in connection with the employee's work that has caused injury to the
employee or to any other person;
(i) comply with every oral or written direction of the Minister or an appeals officer
concerning the health and safety of employees;
(j) report to the employer any situation that the employee believes to be a
contravention of this Part by the employer, another employee or any other person; and
No relief of employer's duties

126(2) Nothing in subsection (1) relieves an employer from any duty imposed on the
employer under this Part.
Limitation of liability
126(3) No employee is personally liable for anything done or omitted to be done in good
faith by the employee when the employee is assisting the employer, as requested by the
employer, in providing first-aid or in carrying out any other emergency measures.
The above clause is much like a “good Samaritan law”.
The employee or worker’s “duties to report hazards, etc.”, above, are more important than some people
think. The reporting of a hazard changes the due diligence of the recipient of the information – the
employer or the supervisor. It may even have criminal negligence implications.
Supervisor and Manager Duties

There is much less consistency across Canada with supervisor and manager duties than with worker or
employee duties. It is important to note that supervisors and managers will have worker or employee
duties. An OHS Act may or may not have express duties specifically for supervisors. If there are duties
for supervisors they will usually encompass managers as “supervisors”. In the case of the Canada
Labour Code, Part II, there is no express duty section for supervisors and managers. Instead they are
Law and Ethics (LE)
covered by the definition of “employer” and have the employer’s duties where applicable. There may be a
general duty clause for supervisors which will mean that supervisors must go beyond the regulations and
the employer’s rules. The focus of supervisor duties is on ensuring that workers have appropriate
knowledge of hazards and controls and that they wear and use protective devices and clothing.
It is usually apparent that employer, worker and supervisor duties are designed to “inter-lock”. That is, the
employer will have a duty to provide certain protective devices or clothes, the supervisor will have a duty
to ensure workers use or wear them properly, and the worker will have a duty to use or wear them.
There is no separate express set of duties for supervisors under the Canada Labour Code, Part II. This is
unfortunate. Supervisors can be found as agents of the employer. Examine the definition of “employer” in
the CLC. A supervisor would have the duties of the employer (adjusted in the circumstances to make
sense). A supervisor could be prosecuted as the “employer”. As well, examine the duties of an employee
and see how the supervisor can be prosecuted as an “employee”. The failure to have a separate section
of supervisors in the CLC is a failure to properly articulate the IRS in the duties, and it is a sign that the
CLC has more of a “labour relations” flavour to it than many of the provincial OHS statutes.
The following is from Ontario as an example of supervisor duties:
27.--(1) A supervisor shall ensure that a worker,

(a) works in the manner and with the protective devices, measures and
procedures required by this Act and the regulations; and
(b) uses or wears the equipment, protective devices or clothing that the
worker's employer requires to be used or worn.
(2) Without limiting the duty imposed by subsection (1), a supervisor shall,
(a) advise a worker of the existence of any potential or actual danger to the
health or safety of the worker of which the supervisor is aware;
(b) where so prescribed, provide a worker with written instructions as to the
measures and procedures to be taken for protection of the worker; and
(c) take every precaution reasonable in the circumstances for the protection
of a worker.
In Section 27 above, can you find the general duty clause? A general duty to tell?
The best example of manager duties is in the NWT Mine Safety Act:
10. (1) The manager shall take every reasonable measure and precaution to protect the
health and safety of employees and other persons at a mine.
(2) The manager shall
(a) comply with this Act and the regulations and any orders or directives issued under this
Act or the regulations;
(b) ensure that the requirements of this Act and the regulations are met in the operation
of the mine; and
(c) ensure that any orders and directives issued under this Act or the regulations are
complied with in the operation of the mine.
(3) In addition to the duties imposed under subsections (1) and (2), the manager shall
(a) ensure that machinery, equipment, materials and protective devices required to be
used at or available at the mine are maintained in good condition;
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(b) ensure that the personal protective equipment required to be provided to employees
by the regulations is maintained in good condition;
(c) when appointing a supervisor or surveyor, appoint a person possessing the
prescribed qualifications;
(d) ensure that an employee is under the daily supervision of a person possessing the
prescribed qualifications;
(e) ensure that an employee receives the information, instruction and supervision
necessary to protect his or her health and safety;
(f) establish and maintain an occupational health and safety program as required under
the regulations;
(g) establish and maintain a medical surveillance program for employees as required
under the regulations;
(h) establish and maintain a mine rescue program as required under the regulations;
(i) ensure that any order, directive, notice or other document that is required to be posted
at a mine under this Act or the regulations is maintained in a legible condition; and
(j) where an owner is a corporation, send a copy of every order of an inspector and every
order and directive of the chief inspector to the senior officer of the corporation
designated under subsection 9(1) to review and consult with the manager in respect of
such orders and directives.
It is a weakness of most Canadian OHS statutes that they do not have detailed duties for “managers” in
addition to duties for “supervisors”.
Officers and Directors’ Duties

“Officers” include the CEO, the VPs and a few other individuals in the upper levels of the organization.
Directors are members of the board of directors of a corporate entity, although the board may consist of
“governors”, “trustees” or “councillors”. The IRS philosophy tells us that people can make poor
“presidential” decisions from an OHS perspective. While CEOs are the top people in the management
system, the board of directors provides oversight. If a president is not taking active steps to ensure
workplace health and safety it is likely because the board of directors doesn’t ask the president any
questions about OHS.
There are two types of duty sections for officers and directors. The most common and weakest type
places liability on officers and directors if they have “acquiesced” or otherwise have been involved in
wrong-doing by the corporate employer. That is, their liability is contingent on the employer’s liability and
seems like an afterthought. A more positive and broader duty will sound more like a general duty clause;
the officer or director will have to take all reasonable care to ensure the employer complies with the Act,
the regulations and Orders/Directions.
The Canada Labour Code, Part II has a relatively complex provision that covers the most senior people
as well as mid-level managers. This type of section is really a “party to the offence” provision.
Officers and senior officials, etc.

149(2) If a corporation or a department in, or other portion of, the federal public
administration to which this Part applies commits an offence under this Part, any of the
following persons who directed, authorized, assented to, acquiesced in or participated in
the commission of the offence is a party to and guilty of the offence and liable on
conviction to the punishment provided for the offence, whether or not the corporation or
department in, or portion of, the federal public administration has been prosecuted or
convicted:
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(a) any officer, director, agent or mandatary of the corporation;

(b) any senior official in the department in, or portion of, the federal public administration;
or
(c) any other person exercising managerial or supervisory functions in the corporation or
department in, or portion of, the federal public administration.
The Ontario OHS Act has a simpler duty for the directors and officers and it is a direct and positive duty to
take reasonable care.
32. Every director and every officer of a corporation shall take all reasonable care to
ensure that the corporation complies with,
(a) this Act and the regulations;
(b) orders and requirements of inspectors and Directors; and
(c) orders of the Minister.
Due diligence for the most senior people would involve policies, the OHS management system, auditing
and leadership practices.
Owners, Contractors, Constructors and Suppliers

The terminology in OHS statutes across Canada is diverse and potentially confusing when it comes to
entities other than the employer who controls the workplace. Such entities could be individuals or
corporations but they are entities who are not employees of the employer who controls the workplace,
and they often have employees of their own. Often the employer is also the owner of the workplace
premises. It is also common that a separate entity owns the workplace and the employer is a commercial
tenant. As a tenant, the employer may not have full control over some conditions in the workplace, which
is why there are often separate duties for owners.
An important set of issues has to do with contractors. A CRSP may be working for the contractor itself or
the employer into whose workplace the contractor has entered. In some jurisdictions, the employer who
controls the workplace may have duties towards the contractor and its employees that are similar to the
duties it has with respect to its own employees. In some jurisdictions there is a distinction between a
contractor who carries on construction work and a contractor who doesn’t. The wording differs but such a
constructor or general contractor may be the primary entity with duties on the construction site and not
the employer who controls the area in which the construction site is located. Contractors can create
hazards for employees who work for the main employer and those employees may create hazards for the
contractor’s workers. The CRSP should understand the need for contractor or visitor safety programs that
are designed to ensure communication between contractors and employers and which provide means to
ensure that a separate entity is in compliance with OHS legislation and the specific requirements of the
employer who controls the workplace. The issues are subtle and diverse.
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Owners’ Duties
Sometimes the employer is leasing the premises from the owner. The employer then has little control over
many aspects of building safety. It makes sense to include duties for owners to ensure that building
standards are met. The following example is from the Ontario OHS Act:
29.--(1) The owner of a workplace that is not a project shall,

(a) ensure that,
(i) such facilities as are prescribed are provided,
(ii) any facilities prescribed to be provided are maintained as
prescribed,
(iii) the workplace complies with the regulations, and
(iv) no workplace is constructed, developed, reconstructed, altered
or added to except in compliance with this Act and the
regulations; and
Engineers and Architects’ Duties

Section 21 from the Nova Scotia OHS Act is a typical example of duties for architects and engineers.
These duties are in addition to any common law duties and any duties in the professional statutes.
Precautions to be taken by architects and offence

21 (1) An architect, as defined in the Architects Act, who gives advice or affixes the
architect's seal to documents or a professional engineer, as defined in the Engineering
Profession Act, who gives advice or stamps documents shall take every precaution that is
reasonable in the circumstances to ensure that a person who is likely to rely on the
advice, seal or stamp will not be in contravention of this Act or the regulations as a result
of such reliance.
(2) Where
(a) an architect, as defined in the Architects Act, gives advice or affixes the architect's
seal to
documents; or
(b) a professional engineer, as defined in the Engineering Profession Act, gives advice or
stamps documents,
negligently or incompetently and a person at a workplace is endangered thereby, the

architect or professional engineer contravenes this Act.
Suppliers’ Duties
These can be for suppliers’ of leased equipment, as in section 31 below from the Ontario OHS Act, or
suppliers’ in a more general sense – almost a full product liability regime, as in s. 16 from the Nova Scotia
OHS Act below.
31.--(1) Every person who supplies any machine, device, tool or equipment under any
rental, leasing or similar arrangement for use in or about a workplace shall ensure,
(a) that the machine, device, tool or equipment is in good condition;

(b) that the machine, device, tool or equipment complies with this Act and
the regulations; and
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(c) if it is the person's responsibility under the rental, leasing or similar

arrangement to do so, that the machine, device, tool or equipment is
maintained in good condition.
Precautions to be taken by suppliers

16. Every supplier shall take every precaution that is reasonable in the circumstances to
(a) ensure that any device, equipment, machine, material or thing supplied by the
supplier is in safe condition, and in compliance with this Act and the regulations when it is
supplied;
(b) where it is the supplier's responsibility under a leasing agreement to maintain it,
maintain any device, equipment, machine, material or thing in safe condition and in
compliance with this Act and the regulations; and
(c) ensure that any biological, chemical or physical agent supplied by the supplier is
labelled in accordance with the applicable federal and Provincial regulations.
Duties for the OHS Professional

Nova Scotia has a duty for the providers of occupational health and safety services. The CRSP in Nova
Scotia can be prosecuted for breaching this section. It is a statutory form of professional malpractice. This
is not a common provision across Canada.
Precautions to be taken by providers of service
s.20. Every person or body who, for gain, is a provider of an occupational health or safety
service shall take every precaution that is reasonable in the circumstances to
(a) ensure that no person at a workplace is endangered as a result of the provider's

activity; and
(b) ensure, where the service involves providing information, that the information
provided, at the time that it is provided, is accurate and sufficiently complete to enable the
recipient to make a competent judgement on the basis of the information.
Worker Representatives and Committees

Almost all the OHS Acts in Canada require that worker representatives and/or workplace health and
safety committees be established. Smaller workplaces typically have worker representatives and larger
workplaces have committees. The purpose of worker representatives, whether alone or on a committee,
is to fulfill the worker’s right to participate in OHS matters. It is important to distinguish between worker
representatives and the health and safety committee as a whole when it comes to duties and powers.
Given the IRS philosophy it is clear that the role of worker representatives and committees is to contribute
to the proper functioning of the main core of the IRS, the employer and the individuals with direct
responsibility. It is a common misunderstanding of the IRS to believe that committees, in particular, are
the main way in which OHS is carried out. It is a labour relations perspective to believe that committees
represent a labour and management partnership in which the two parties jointly co-manage OHS. It may
sound good to many people but it is an approach that leads to individuals passing OHS issues along to
their representatives rather than taking action themselves.
Law and Ethics (LE)
It can be said that the duties and powers of representatives and committees are of two types – proactive
and reactive. If the IRS in its central core is not working properly, then problems can move “sideways” to
the worker representative who can assist in the resolution of the problem. The more serious example of
this is a work refusal, which is usually a sign that something has gone very wrong with the usual problem-
solving processes in the main core of the IRS. The reactive role is to respond to complaints, concerns
and work refusals. More positively and proactively, the worker representative and the committee function
as advisors, consultants and counsellors, reviewing elements in the OHS management system and
offering recommendations for improvements.
Duties Regarding Hazardous Materials

We will discuss the changes to WHMIS with regard to the introduction of the Globally Harminized System
(GHS) below. While WHMIS/GHS is concerned primarily with chemical hazards, WHMIS/GHS is about
safe handling by workers. Safe handling will result in a reduction in the risk of exposure from a health
perspective and in the risk of mishaps resulting in accidents and traumatic injuries. There are other
approaches to controlling chemicals. “Workplace pollution” can be controlled by setting and conforming to
“exposure limits”. The concentration of airborne contaminants is measured and compared with a legal
exposure limit. The exposure limit might be for a 40 hour, an 8 hour, a 15 minute exposure, or for an
instantaneous exposure. Many jurisdictions in Canada have copied or adopted the exposure limits set by
an American organization– the American Conference of Governmental Industrial Hygienists (ACGIH). The
technical aspects of sampling and analysis and control of airborne contaminants are covered in the
subject matter of Occupational Health.
The CRSP should have the ability to interpret legislation specifying chemical control limits.
new chemical notification CEPA exposure limit

ACGIH TLV chemical assessment
control program time weighted average
short term exposure limit ceiling limit parts per million
CAS number carcinogen
The Canada Labour Code, Part II duties relevant to exposure of workers to toxic materials are as follows:
Further specific duties of employer

125.1 Without restricting the generality of section 124 or limiting the duties of an
employer under section 125 but subject to any exceptions that may be prescribed, every
employer shall, in respect of every work place controlled by the employer and, in respect
of every work activity carried out by an employee in a work place that is not controlled by
the employer, to the extent that the employer controls the activity,
(a) ensure that concentrations of hazardous substances in the work place are
controlled in accordance with prescribed standards;
(f) where employees may be exposed to hazardous substances, investigate and
assess the exposure in the manner prescribed, with the assistance of the
work place committee or the health and safety representative; and
(g) ensure that all records of exposure to hazardous substances are kept and
maintained in the prescribed manner and that personal records of
exposure are made available to the affected employees.
Law and Ethics (LE)
While the regulations under the Canada Labour Code, Part II are not generally on the CRSP exam, the
following from Canada Occupational Health and Safety Regulations SOR/86-304, is relatively typical in its
adoption of the ACGIH TLVs:
10.19 (1) An employee shall be kept free from exposure to a concentration of

(a) an airborne chemical agent, other than grain dust or airborne chrysotile asbestos, in
excess of the value for that chemical agent adopted by the American Conference of
Governmental Industrial Hygienists, in its publication entitled Threshold Limit Values and
Biological Exposure Indices, dated 1994-1995, as amended from time to time;
(b) airborne grain dust in excess of 10 mg/m3; or
(c) airborne chrysotile asbestos in excess of one fibre per cubic centimetre.
The CRSP candidate will be very familiar with the introduction to the ACGIH TLV document, as it is a
“primer” on regulatory toxicology. The details regarding exposure limits will be covered in the BCRSP’s
Occupational Health (OH) domain. For our purposes, note that a jurisdiction can adopt a guideline into a
regulation, and its contents then become law, as is the case in s.10.19. The adoption can be for a specific
year or edition, which can freeze the exposure limits, or it can be “as amended from time to time”, as is
the case in s.10.91.
Philosophically, some people may have trouble with a foreign non-profit group changing the content of
Canadian law every time it amends a guideline, but there it is. Other jurisdictions in Canada simply take
the content of the ACGIH exposure limits and reprint them as a regulation. How this is done with regards
to copyright law is a puzzle, but there it is.
New Chemical Notification

CRSPs who develop a WHMIS/GHS program for an organization, which is using large numbers of
chemicals, is likely to run into the issue of “new chemical notification”. A provincial OHS statute may
require “new chemical notification” so that its Inspectors have some idea of what is being used. There
may be difficulty in getting a WHMIS/GHS SDS from a supplier or distributor of a chemical that is new.
The CRSP should be aware of the federal “new chemical notification system” under the Canadian
Environmental Protection Act (CEPA). Much of the information that must be provided by the importers or
manufacturers of new chemicals is relevant to occupational hygiene. The CRSP will also be interested in
CEPA from an environmental point of view. The following sections are from CEPA and are aimed at the
regulation of new chemicals. There are “new chemical notification” regulates made under CEPA with
more technical detail.
Substances and Activities New to Canada

Definitions
80. The definitions in this section apply in sections 81 to 89.
“significant new activity” includes, in respect of a substance, any activity that results in or
may result in
(a) the entry or release of the substance into the environment in a quantity or
concentration that, in the Ministers’’ opinion, is significantly greater than the quantity or
concentration of the substance that previously entered or was released into the
environment; or
(b) the entry or release of the substance into the environment or the exposure or potential
exposure of the environment to the substance in a manner and circumstances that, in the
Ministers’’ opinion, are significantly different from the manner and circumstances in which
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the substance previously entered or was released into the environment or of any previous
exposure or potential exposure of the environment to the substance.
“substance” means a substance other than a living organism within the meaning of Part
6.
Manufacture or import of substances
81. (1) Where a substance is not specified on the Domestic Substances List and
subsection (2) does not apply, no person shall manufacture or import the substance
unless
(a) the prescribed information with respect to the substance has been provided by the
person to the Minister accompanied by the prescribed fee, on or before the prescribed
date; and
(b) the period for assessing the information under section 83 has expired.
Notification of significant new activity in respect of substance on List

(3) Where a substance is specified on the Domestic Substances List with an indication
that this subsection applies with respect to the substance, no person shall use,
manufacture or import the substance for a significant new activity that is indicated on the
List with respect to the substance unless
(a) the person has provided the Minister with the prescribed information, on or before the
date that is specified by the Minister or prescribed, accompanied by the prescribed fee;
and
(b) the period for assessing the information specified by the Minister or provided under
section 83 has expired.
Notification of significant new activity in respect of substance not on List
(4) Where a substance is not specified on the Domestic Substances List and the Minister
publishes a notice in the Canada Gazette indicating that this subsection applies with
respect to the substance, no person shall use the substance for a significant new activity
that is indicated in the notice unless
(a) the person has provided the Minister with the prescribed information, on or before the
date that is specified by the Minister or prescribed, accompanied by the prescribed fee;
and
(b) the period for assessing the information specified by the Minister or provided under
section 83 has expired.
Application
(6) Subsections (1) to (4) do not apply to
(a) a substance that is manufactured or imported for a use that is regulated under any
other Act of Parliament that provides for notice to be given before the manufacture,
import or sale of the substance and for an assessment of whether it is toxic or capable of
becoming toxic;
(b) transient reaction intermediates that are not isolated and are not likely to be released
into the environment;
(c) impurities, contaminants and partially unreacted materials the formation of which is
related to the preparation of a substance;
(d) substances produced when a substance undergoes a chemical reaction that is
incidental to the use to which the substance is put or that results from storage or from
environmental factors; or
(e) a substance that is manufactured, used or imported in a quantity that does not exceed
the maximum quantity prescribed as exempt from this section.
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Competency LE6: Workers’ Rights

The CRSP should possess an understanding of the right to refuse unsafe work and the right to know
about hazards.
The Right to Know, WHMIS

The right to know about workplace hazards is one of the three traditional worker rights in OHS law. The
right to know is very broad; in most jurisdictions it is typically expressed as a broad “duty to tell” on the
part of the employer (and less often on the part of the supervisor). The right to know applies to many
types of hazards and concerns. The right to know about chemical hazards is only one slice of the general
subject matter.
The focus here is on the national system for fulfilling the right to know about chemical hazards, known as
the Hazardous Materials Information System (WHMIS). This came into effect in the late 1980s in all
jurisdictions in Canada. The basic structure is set by federal legislation, with the technical details of
material safety data sheets and supplier labels found in the federal Hazardous Products Regulation under
the Hazardous Products Act. The legal requirements for training under WHMIS in federally regulated
workplaces are under the Canada Labour Code, Part II and regulations. The requirements for WHMIS
training in all other workplaces are under the provincial or territorial OHS legislation. Because WHMIS
was developed through a tripartite process (labour, management and government), with federal,
provincial and territorial governments participating, the national WHMIS scheme should be integrated and
harmonious across jurisdictions. Familiarity with WHMIS in one jurisdiction will apply generally to other
jurisdictions.
WHMIS SDS supplier

importer producer supplier label
workplace label controlled product WHMIS classes
WHMIS hazard symbols Hazardous Products Act
Hazardous Materials Information Review Act
WHMIS inventory community right to know
Pest Control Products Act TDGA
Explosives Act Food and Drug Act GHS
Nuclear Safety and Control Act
General “Duties to Tell”

The right to know about hazards is usually expressed as “duties to tell”. Most of such duties are on the
employer, although some jurisdictions will have a personal duty on supervisors to advise their workers of
any hazard. The Canada Labour Code, Part II has a number of “duty to tell” clauses:
125(1) ... every employer shall ...

(q) provide, in the prescribed manner, each employee with the information,
instruction, training and supervision necessary to ensure their health and safety
at work;
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(s) ensure that each employee is made aware of every known or foreseeable health
or safety hazard in the area where the employee works;
(z.14) take all reasonable care to ensure that all of the persons granted access to the
work place, other than the employer's employees, are informed of every known
or foreseeable health or safety hazard to which they are likely to be exposed in
the work place;
Paragraph (s) is the broadest duty as it is “regulation independent” and is not about any specific type of
hazard or its control; it’s quite open-ended. This sort of duty to tell is very powerful and it goes beyond the
chemical and biological hazards covered by WHMIS and would include all sorts of physical agents. It
must not be forgotten that WHMIS is only a small part of the whole scope of the employer’s obligation to
tell workers about hazards.
One should distinguish, under the IRS philosophy, between the individual’s legal right to be told about
hazards, and the worker’s representative’s right to be told about hazards. Under the Canada Labour
Code, Part II, the policy committee, the work place committee and the HSR all have the right to
information from the employer; for example:
Information
135(8) A work place committee, in respect of the work place for which it is established,
may request from an employer any information that the committee considers necessary
to identify existing or potential hazards with respect to materials, processes, equipment or
activities.
Access
135(9) A work place committee, in respect of the work place for which it is established,
shall have full access to all of the government and employer reports, studies and tests
relating to the health and safety of the employees, or to the parts of those reports, studies
and tests that relate to the health and safety of employees, but shall not have access to
the medical records of any person except with the person's consent.
Taking the individual and representative rights together, the general atmosphere in the workplace should
be one of openness and transparency about hazards and their controls. With specific exceptions such as
trade secrets, personal medical records and legal communications (which are privileged), there should be
no secrets about OHS in the work place.
The theory is that the IRS will function much better in an open atmosphere because individuals at all
levels will be able to make better decisions about the hazards that they may be involved with and may
have control over. The OHS management system functions more effectively with an uninhibited flow of
information about hazards and controls through the system’s programs.
The right to refuse and the right to participate through a representative can be considered to be “back up”
or “failsafe” mechanisms for the IRS, but the right to know should be viewed metaphorically as the
“grease” or “lubrication” for the IRS problem-solving machine.
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WHMIS 1988 and WHMIS 2015
(From CCOHS) WHMIS first became law in 1988 through a series of complementary federal, provincial
and territorial legislation and regulations. This original system will be identified as WHMIS 1988. Updates
to implement GHS will be referred to as WHMIS 2015. Canada has aligned the Workplace Hazardous
Materials Information System (WHMIS) with the Globally Harmonized System of Classification and
Labeling of Chemicals (GHS). Health Canada is the government body responsible for making the required
changes to the overall federal WHMIS-related laws. Note that WHMIS-related occupational health and
safety regulations for the provinces, territories and federally regulated workplaces will also require
updating. The WHMIS 2015 legislation is currently in force. "In force" means that suppliers may begin to
use and follow the new requirements for labels and safety data sheets (SDSs) for hazardous products
sold, distributed, or imported into Canada. However, there is a transition period with various stages. At the
outset of the transition period, the supplier must fully comply with either the repealed Controlled Products
Regulations (WHMIS 1988) or the HPR (WHMIS 2015) for a specific controlled or hazardous product. The
classification, label and (material) SDS must comply fully with the specific regulation chosen by the
supplier, and not be a combination of the two. WHMIS has aligned with the worldwide hazard
communication system known as GHS - the Globally Harmonized System of Classification and Labeling
of Chemicals. Aligning with GHS provides many benefits, including:
• Hazard classification criteria are more comprehensive which improves ability to indicate severity
of hazards.
• New hazard classes are included.
• Physical hazard criteria are consistent with the Transport of Dangerous Goods (TDG regulations).
• Standardized language (hazard and precautionary statements).
• Standardized SDS format and more comprehensive requirements.
WHMIS 1988
Some general points about the Workplace Hazardous Materials Information System:
 it is a Canada-wide system that applies in the federal, provincial and territorial jurisdictions
 it is a system that:
o provides information and education to workers about hazardous materials such that
individuals in the workplace will be able to safely handle such materials
o provides information to the employer so that a variety of programs in the OHS
management system can function more effectively
o provides information to the committee and worker reps so that they can more effectively
audit the system’s handling of hazardous materials
o ensures consistency of hazard information systems across Canada so as to improve
economic efficiency (e.g. one label system, not 14)
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o assists with labour mobility across Canada as training in one jurisdiction need only be
“touched up” if a worker moves to another jurisdiction
 it was developed in the 1980s through negotiations between all governments and labour and
industry – a “tripartite process” (not to be confused with internal “bipartite” ... labour and
management ... entities and processes)
 it came into effect for the most part on October 31st, 1988
 it applies in workplaces; it is not a public or consumer system (although some jurisdictions may
have added “community right to know” provisions)
 it is primarily about chemical hazards, and to a lesser extent, biological hazards (viruses,
bacteria, protozoans and their secretions, but not bears); some jurisdictions may have given
themselves the ability to extend it to “physical hazards”
 the federal government has jurisdiction over national systems for packaging and labelling and the
provinces have jurisdiction over handling and training in their workplaces; the federal government
also has jurisdiction over handling and training in federally regulated workplaces
 the system is an “interlocked” system where federal and provincial legislation is designed to “fit
together”; the provincial laws will use the federal classification scheme, labels and safety data
sheets (SDSs) in their provincially regulated workplaces
 the provincial and territorial WHMIS laws, and the Canada Labour Code, Part II WHMIS
provisions are extremely similar as there was a model OHS law that was used as the basis for all
legislation
 the federal Hazardous Products Act, which pre-existed WHMIS, and which is concerned primarily
with consumer safety, was used as the main federal vehicle for the national classification,
labelling and SDS scheme
 labelling for consumer goods is now under the federal Canada Consumer Product Safety Act.
Until 2010, consumer products were under the Hazardous Products Act.
 the Hazardous Products Regulation (HPR) is a regulation made under the Hazardous Products
Act, and it is where the technical details for the classification scheme and the supplier label and
SDS requirements reside
 the second federal statute of WHMIS significance is the Hazardous Materials Information Review
Act (HMIRA)
 the HMIRA applies across Canada
 the HMIRA allows suppliers to make a claim for non-disclosure of trade secret information in an
SDS
 under the HMIRA, the claim is heard by a federal Hazardous Materials Information Review
Commission
 the provincial and territorial WHMIS laws deal with the issue of protecting trade secrets by
referring claims to the federal Commission, thus ensuring a single decision for the whole country
 the third federal statute does not apply to every workplace, but only federally regulated
workplaces – the Canada Labour Code, Part II was amended to put in WHMIS provisions similar
to the provinces and territories with regard to handling and training within workplaces; the
following are WHMIS provisions in the Code, the details being in the regulations made under the
Code:
Further specific duties of employer

125.1 Without restricting the generality of section 124 or limiting the duties of an
employer under section 125 but subject to any exceptions that may be prescribed, every
employer shall, in respect of every work place controlled by the employer and, in respect
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of every work activity carried out by an employee in a work place that is not controlled by
the employer, to the extent that the employer controls the activity,
(a) ensure that concentrations of hazardous substances in the work place are controlled
in accordance with prescribed standards;
(b) ensure that all hazardous substances in the work place are stored and handled in the
manner prescribed;
(c) ensure that all hazardous substances in the work place, other than hazardous
products, are identified in the manner prescribed;
(d) subject to the Hazardous Materials Information Review Act, ensure that each
hazardous product in the work place or each container in the work place in which a
hazardous product is contained has affixed to it, printed on it, attached to it or otherwise
applied to it a label that meets the prescribed requirements;
(e) subject to the Hazardous Materials Information Review Act, make available to every
employee, in the prescribed manner, a safety data sheet for each hazardous product to
which the employee may be exposed that meets the requirements set out in the
regulations made under subsection 15(1) of the Hazardous Products Act;
(f) where employees may be exposed to hazardous substances, investigate and assess
the exposure in the manner prescribed, with the assistance of the work place committee
or the health and safety representative; and
(g) ensure that all records of exposure to hazardous substances are kept and maintained
in the prescribed manner and that personal records of exposure are made available to
the affected employees.
Employer to provide information in emergency
125.2 (1) An employer shall, in respect of every work place controlled by the employer
and, in respect of every work activity carried out by an employee in a work place that is
not controlled by the employer, to the extent that the employer controls that activity,
provide, in respect of any hazardous product to which an employee may be exposed, as
soon as is practicable in the circumstances, any information that is included in the safety
data sheet that is in the employer’s possession for the hazardous product to any
physician or other prescribed medical professional who requests that information for the
purpose of making a medical diagnosis of, or rendering medical treatment to, an
employee in an emergency.
Information to be kept confidential
(2) Any physician or other prescribed medical professional to whom information is

provided by an employer pursuant to subsection (1) shall keep confidential any
information specified by the employer as being confidential, except for the purpose for
which it is provided.
 In addition, section 125(1)(q), noted above, refers to prescribed training in the regulations
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 the provinces generally amended their OHS statutes and added a WHMIS regulation or WHMIS
sections to an existing regulation
 the WHMIS “Triad” or “three-pronged delivery” system consists of labels, SDSs and worker
instruction
 the purpose of a label is to give a worker a quick, simple warning about the nature of the hazard
and what to do or avoid; lengthy, detailed labels defeat the purpose of a label
 the purpose of the SDS is to provide detailed information for the purpose of developing
workplace-specific WHMIS training; although workers have access to SDSs and should be
trained how to read them, their primary function remains the basis for training program
development
 the purpose of WHMIS training is to ensure that the worker knows enough about the material to
handle it safely – the end state of WHMIS is not cognitive, but behavioural (i.e. it’s not really an
abstract right to know)
 each worker working with or potentially exposed to the hazardous material has the “right to
know”; it’s individualistic ... the employer is not in compliance if the average worker is trained or
most are trained or almost all are trained ... one untrained worker is non-compliance
 to produce a workplace-specific training package, the employer would have to combine very
specific information about how the material was actually being used (through task analysis for
example), with the generic information on the SDS, to come up with the safe handling procedure
that the worker is trained on; employers who simply review SDSs without applying them are
missing the point
 outside the workplace, importers, producers and suppliers have WHMIS duties
 “suppliers” have the main duties to use the HPR and classify, label and provide SDSs for their
materials
 inside the workplace, since all individuals as workers or employees have to comply with the Act
and regulations, including WHMIS provisions, everyone, including the employer as a whole, will
have WHMIS duties of various sorts
 WHMIS is more like a “duty to know” than a “right to know” since workers cannot opt out of
WHMIS training or refuse to apply their WHMIS knowledge to the job
 for the employer as a whole, the most effective means of complying with WHMIS requirements, or
to be duly diligent, is to have a “WHMIS program” which is continuously monitored and updated
 a jurisdiction may not have an express requirement for an inventory or floor plans showing the
location of hazardous materials, but it is very difficult to match workers with chemicals to be
trained on, or keep track of the currency of your SDSs, without them
 in general, there are no WHMIS duties for:
o wood
o tobacco
o manufactured articles
 WHMIS label and SDS requirements do not apply to:
o explosives
o cosmetics, foods and drugs
o pesticides
o radioactive materials
o materials packaged and sold as consumer products
o hazardous wastes
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 but be careful, as there may be WHMIS training for the above (it’s tricky saying that something is
a “WHMIS material” ... it depends)
 the general rule is that a material has both a WHMIS label and a WHMIS SDS, never one without
the other
 within the workplace, the employer will have to ensure that material arrives with its supplier
WHMIS label and SDS and that these continue to be present
 an employer may be its own supplier and provide workplace labels and SDSs
 in an emergency, the employer must provide information, including trade secret information, to
emergency health care workers
 the employer must have SDSs available to workers and worker reps in the workplace
 SDSs must be kept up to date; they have a life span of three years
 most jurisdictions require the committee to be consulted on the WHMIS training
The WHMIS classes are as follows:
Class/Division/Subdivision Description
Class A Compressed gases
Class B Flammable and Combustible Materials
Division 1 Flammable Gases
Division 2 Flammable Liquids
Division 3 Combustible Liquids
Division 4 Flammable Solids
Division 5 Flammable Aerosols
Division 6 Reactive Flammable Materials
Class C Oxidizing Material
Class D Poisonous and Infections Material
Division 1 Material Causing Immediate and Serious Toxic

Effects
 Subdivision A  Very Toxic Material
 Subdivision B  Toxic Material

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Division 2 Material Causing Other Toxic Effects
 Subdivision A  Very Toxic Material
 Subdivision B  Toxic Material
Division 3 Biohazardous Infectious Material
Class E Corrosive Material
Class F Dangerously Reactive Material
 the supplier label generally has to have the following:
o the product identifier

o the supplier identifier
o a statement that a material safety data sheet is available
o hazard symbols set out in the HPR, that correspond with the Classes and Divisions in
which the product falls
o risk phrases
o precautionary measures to be followed when handling, using or being exposed to the
controlled product
o where appropriate, first aid measures to be taken in case of exposure to the controlled
product
o a dashed border
 the CRSP should be able to identify the WHMIS symbol which matches the WHMIS class, and
give several examples of materials that would require each type of symbol:
Compressed gas
flammable and combustible material

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oxidizing material
poisonous and infectious material
materials causing immediate and

serious toxic effect
material causing other toxic effects
biohazardous infectious material
corrosive material
dangerously reactive material

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 the CRSP should know the categories on a WHMIS SDS and understand the definitions of the
terms typically used on SDSs
o product information
o hazardous ingredients
o physical data
o fire or explosion hazard
o reactivity data
o toxicological properties
o preventive measures
o first aid measures
o preparation information
WHMIS 2015
Fire hazards
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Flammable gases (Category 1)
Flammable aerosols (Category 1 and 2)
Flammable liquids (Category 1, 2 and 3)
Flammable solids (Category 1 and 2)
Pyrophoric liquids (Category 1)
Pyrophoric solids (Category 1)
Pyrophoric gases (Category 1)
Self‐heating substances and mixtures (Category 1 and 2)
Substances and mixtures which, in contact with water, emit flammable gases (Category 1, 2 and 3)
Self‐reactive substances and mixtures (Types B*, C, D, E and F)
Organic peroxides (Types B*, C, D, E and F)
Oxidizing Hazards

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Oxidizing gases (Category 1)
Oxidizing liquids (Category 1, 2 and 3)
Oxidizing solids (Category 1, 2 and 3)
Gases Under Pressure
Gases under pressure (Compressed gas, Liquefied gas, Refrigerated liquefied gas, and Dissolved gas)
Corrosives
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Corrosive to metals (Category 1)
Skin corrosion/irritation ‐ Skin corrosion (Category 1, 1A, 1B and 1C)
Serious eye damage/eye irritation ‐ Serious eye damage ( Category 1)
Explosion or Reactivity Hazard
Self‐reactive substances and mixtures (Types A and B)
Organic peroxides (Types A and B)
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Both the Flame and Explosive pictogram are used for Self‐reactive substances and mixtures (Type B) and
Organic peroxides (Type B)
Death or Toxicity
in Short Time and Small Amounts
Acute toxicity ‐
Oral (Category 1, 2 and 3)
Dermal (Category 1, 2 and 3)
Inhalation (Category 1, 2 and 3)
Serious Health Effects

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Respiratory or skin sensitization ‐ Respiratory sensitizer (Category 1, 1A and 1B)
Germ cell mutagenicity (Category 1, 1A, 1B and 2)
Carcinogenicity (Category 1, 1A, 1B, and 2)
Reproductive toxicity (Category 1, 1A, 1B and 2)
Specific Target Organ Toxicity ‐ Single exposure (Category 1 and 2)
Specific Target Organ Toxicity ‐ Repeated exposure (Category 1 and 2)
Aspiration hazard (Category 1)
Less Serious Health Effects or Damage to the Ozone Layer

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Acute toxicity ‐ Oral, Dermal, Inhalation (Category 4)
Skin corrosion/irritation ‐ Skin irritation (Category 2)
Serious eye damage/eye irritation ‐ Eye irritation (Category 2 and 2A)
Respiratory or skin sensitization ‐ Skin sensitizer (Category 1, 1A and 1B)
Specific target organ toxicity ‐ Single exposure (Category 3)
Organisms or Toxins that Cause Disease

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Biohazardous Infectious Materials (Category 1)
Not Otherwise Classified
Physical Hazards Not Otherwise Classified and Health Hazards Not Otherwise Classified classes are
required to have a GHS pictogram that is appropriate to the hazard identified.
Do all hazard classes and categories require a pictogram? No. There are hazardous products that meet
the criteria for a hazard class or category, but these classes and categories do not require a pictogram.
The product label and Section 2 (Hazards Identification) of the SDS still require the signal word, hazard
statement(s), and other required label elements.
Do all hazard classes and categories require a pictogram? WHMIS 2015 classes and categories that do
not require a pictogram are:
Flammable gases ‐ Category 2
Flammable liquids ‐ Category 4
Self‐reactive substances and mixtures ‐ Type G
Organic peroxides ‐ Type G
Combustible dusts ‐ Category 1
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Simple Asphyxiants ‐ Category 1
Serious eye damage/eye irritation ‐ Eye Irritation ‐ Category 2B
Reproductive toxicity ‐ Effects on or via lactation
(from CCOHS)
Non-WHMIS Labelling Systems

Other than WHMIS, there are six labelling systems in Canada required by law that the CRSP should
understand:
 consumer goods under the federal Canada Consumer Product Safety Act. Until 2010, consumer
products were under the Hazardous Products Act.
 pesticides under the federal Pest Control Products Act (PCPA)
 hazardous materials in transit under the federal Transportation of Dangerous Goods Act (TDGA)
 radioactive materials under the federal Nuclear Safety and Control Act (NSCA)
 drugs, cosmetics and food additives under the federal Food and Drug Act (FDA)
 explosives under the federal Explosives Act
They should be part of any WHMIS training program (if present in the workplace) because while WHMIS
labels and SDSs may not be required for them, the hazardous materials they cover may be subject to the
requirement for WHMIS training. At the very least, one would want to eliminate confusion that results with
multiple labelling systems.
Consumer products. Canada Consumer Product Safety Act. If a material is packaged in a quantity or
concentration that is suitable for consumer use, then it is a consumer product. A litre of bleach is a
consumer product; a 45 gallon drum of bleach is not. So products purchased at the hardware store and
brought into the workplace will have consumer labels and not WHMIS labels.
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There will be differences – a container of paint thinner, which is combustible but not flammable, will not
have a flame symbol on it if purchased from the hardware store, but it will have a WHMIS flame symbol
on it if purchased by the drum as both combustibles and flammables have a flame symbol under WHMIS.
The CRSP candidate, if presented with one of the above symbols should be able to identify the degree
and nature of the hazard.
Pesticide labelling. PCPA. Pesticides must be registered with the federal government before
distributing. They are classified (e.g. Restricted or Domestic) and, unlike regimes like WHMIS, the
proposed label is scrutinized by the regulators before approval. The symbols used are the same as the
consumer symbols. The pesticide label must show:
 product name
 product class (Restricted or Domestic)
 degree and nature of hazard from the control product
 directions for use
 instructions for first aid
 a toxicology statement giving an antidote and remedial measures to be followed in case of
intoxication by the product, a list of symptoms of intoxication, and a statement of ingredients not
mentioned elsewhere which might affect the treatment.
And, in addition, there are the following “mandatory statements” that must be on the label word for word:
 Keep out of reach of children.
 Read the label before using.
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 Notice to the user -- this control product is to be used only in accordance with directions on this
label. It is an offence under the Pest Control Products Act to use a control product under unsafe
conditions.
Pesticides represent an “interlocked” federal and provincial regulatory regime, similar to WHMIS. The
federal government regulates classification, labelling and packaging and the provincial and territorial
governments regulate the licensing, handling, training, use aspects of pesticides. While the contents will
not be on the CRSP exam, the CRSP will be familiar with provincial pesticide legislation.
Goods in transit. TDGA. Hazardous materials in transit are governed by the TDGA and will have TDGA
labels on containers and placards on the sides of trains and trucks. There are nine classes with many
subdivisions. The colouring scheme can be bewildering. One look and one realizes why the scheme,
which pre-dates WHMIS (mid 1980s) was not used for WHMIS – who can remember the detail? The
purpose of the TDGA placarding system is to allow emergency responders to know with some degree of
certainty what the contents of overturned trucks and de-railed trains are – will the contents explode or mix
together to form a toxic gas? The PIN number – product identification number – on the placard can be
read with binoculars at a great distance. The CRSP candidate should know the TDGA classes:
 Class 1 – Explosives
 Class 2 – Compressed Gases
 Class 3 – Flammable Liquids
 Class 4 – Flammable Solids, etc
 Class 5 – Oxidizers and Organic Peroxides
 Class 6 – Poisonous and Infectious Substances
 Class 7 – Corrosives
 Class 8 – Radioactives
 Class 9 – Miscellaneous Dangerous Goods
Compare and contrast the symbols used in WHMIS and in TDGA – there is some overlap and some
distinctions.
Radioactive materials. NSCA. The may be provincial laws governing the licensing, use and training with
regard to X-ray devices and any such radiation producing devices used as medical devices will also be
regulated under the federal Food and Drug Act. However, the radioactive material itself, the
radioisotopes, will be regulated by the federal Nuclear Safety and Control Act, which creates the Nuclear
Safety and Control Commission. Hospitals, universities and research institutes are the main types of
workplaces using significant amounts of radioisotopes. While conventional health and safety may be
under provincial jurisdiction in these work places, the handling of radioisotopes will be under the NSCA.
The NSCA radiation “trefoil symbol” must be used:
 for containers of radioactive materials

 for rooms containing radioactive materials
 on packages of radioactive materials readied for transport
Law and Ethics (LE)
The NSCA is primarily a licensing system, and the key provision is:
26. Subject to the regulations, no person shall, except in accordance with a licence,
(a) possess, transfer, import, export, use or abandon a nuclear substance,
prescribed equipment or prescribed information;
(b) mine, produce, refine, convert, enrich, process, reprocess, package, transport,
manage, store or dispose of a nuclear substance;
(c) produce or service prescribed equipment;
(d) operate a dosimetry service for the purposes of this Act;
(e) prepare a site for, construct, operate, modify, decommission or abandon a
nuclear facility; or
(f) construct, operate, decommission or abandon a nuclear-powered vehicle or bring
a nuclear-powered vehicle into Canada.
There are a number of important regulations under the NSCA, a key one being the Radiation Protection
Regulations, SOR/2000-203:
Labelling of Containers and Devices

20. (1) No person shall possess a container or device that contains a radioactive nuclear
substance unless the container or device is labelled with
(a) the radiation warning symbol set out in Schedule 3 and the words "RAYONNEMENT -
- DANGER -- RADIATION"; and
(b) the name, quantity, date of measurement and form of the nuclear substance in the
container or device.
(2) Subsection (1) does not apply in respect of a container or device
(a) that is an essential component for the operation of the nuclear facility at which it is
located;
(b) that is used to hold radioactive nuclear substances for current or immediate use and
is under the continuous direct observation of the licensee;
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(c) in which the quantity of radioactive nuclear substances is less than or equal to the
exemption quantity; or
(d) that is used exclusively for transporting radioactive nuclear substances and labelled in
accordance with the Packaging and Transport of Nuclear Substances Regulations.
Posting of Signs at Boundaries and Points of Access

21. (1) Every licensee shall post and keep posted, at the boundary of and at every point
of access to an area, room, enclosure or vehicle, a durable and legible sign that bears
the radiation warning symbol set out in Schedule 3 and the words "RAYONNEMENT --
DANGER -- RADIATION", if
(a) there is a radioactive nuclear substance in a quantity greater than 100 times its
exemption quantity in the area, room, enclosure or vehicle; or
(b) there is a reasonable probability that a person in the area, room, enclosure or vehicle
will be exposed to an effective dose rate greater than 25 µμSv/h.
(2) Subsection (1) does not apply in respect of a vehicle that is placarded in accordance
with the Packaging and Transport of Nuclear Substances Regulations.
Use of Radiation Warning Symbol
22. Whenever the radiation warning symbol set out in Schedule 3 is used,
(a) it shall be
(i) prominently displayed,
(ii) of a size appropriate for the size of the container or device to which it is affixed or
attached, or of the area, room, enclosure or vehicle in respect of which it is posted,
(iii) in the proportions depicted in Schedule 3, and
(iv) oriented with one blade pointed downward and centred on the vertical axis; and
(b) no wording shall be superimposed on it.
The Radiation Protection Regulations also contains the exposure limits for radiation used in Canada. The
CRSP who has radioactive materials or devices in the workplace will need to become intimately familiar
with the regulations under the NSCA.
Food additives, drugs and cosmetics. FDA.

There are no special symbols of note under the FDA. There are many statements that must be on the
consumer labels for these products, but they are of little relevance to most workers. The workers in the
factories that produce food additives, drugs and cosmetics will need to know about the hazards of the
ingredients of these products rather than the hazards of the products themselves, and the ingredients will
likely be labelled and packaged in conformance with the TDGA and WHMIS. In some cases, such as
cosmetics in metal containers under pressure, the consumer symbol will be used.
Explosives. Explosives Act.

The packaging and labelling of “explosives” is under this federal Act across Canada. The actual handling
and use of explosives will likely fall under a provincial mining or construction regulation. Under the
Explosives Act, the definition of “explosive” includes: gunpowder, propellant powders, blasting agents,
dynamite, detonating cord, lead azide, detonators, ammunition, rockets, fireworks, safety flares or other
signals. Note that “ammunition” will include the “ammunition” used in explosive actuated fastening tools,
which are quite common on construction projects. The labelling and packaging requirements vary
Law and Ethics (LE)
considerably for the different “explosives” but generally explosives packaging will have the following on
the label:
 the word "Explosive" (some exceptions such as "Fireworks")

 the number and Class and Division to which the explosive belongs
 the manufacturer or sender's name
 certain serial numbers
 for some (nitro-compound and chlorate mixture) a date of manufacture.
However, ammunition packages do not have the same detail. They do not have "explosive" on them, for
example.
The Right to Participate

The CRSP should be able to demonstrate an understanding of the roles and functions of health and
safety committees and representatives.
Most jurisdictions in Canada require the presence of worker representatives and health and safety
committees in the workplace. Alberta takes a minimalist approach to the role of committees. The federal
jurisdiction puts health and safety committees on centre stage. Indeed, the federal jurisdiction, since
2000, has a very complex approach to committees, with the requirement in larger organizations for a
“policy committee” in addition to local workplace committees.
The function of worker representatives and health and safety committees is to fulfil the worker’s right to
participate in OHS decision-making. It must always be kept in mind that the worker is directly participating
in OHS on a day to day basis as a result of the duties. The right to participate is an indirect,
representative right.
Depending on the jurisdiction, a small organization may not have any worker representation. Moderate
sized workplaces may have a single worker representative, while large workplaces would have a health
and safety committee. A corporation with many workplace locations may have a complex array of
representatives and committees.
The CRSP should be familiar with the federal system of representatives and committees, but should also
have it firmly in mind that the federal system is now unusual in the existence of “policy committees”.
Organizations in the federal sector with 300 or more employees must have a policy committee, in addition
to whatever array of local workplace committees and representatives already exists. The powers of the
federal entities are generally stronger than those of the provincial committees and representatives. The
federal committee powers tend to encompass many of the activities of management under the IRS model
previously discussed.

 policy committees
 workplace committees
 health and safety representatives
 quorum
 minutes
 agenda
Law and Ethics (LE)
Summarizing the requirements for policy committees in the Canada Labour Code, Part II:
 if 300 or more employees in the organization (not just a location), then a policy committee is
required
 if 21-299 employees, employer may choose to have a policy committee
 with the agreement of the union or workers the employer may establish more than one policy
committee (a trans-Canada organization may have “regional” policy committees for example)
 the duties of the policy committee are broad and should be examined carefully for their
implications. The policy committees do far more than advising on policy, and their potential
hands-on involvement at a local level could pose a problem for local committees
 a key word to note in the policy committees duties is “participate”, which is a stronger word than
being “consulted”. Oddly, the employer will have a duty to “consult” with the policy committee,
while the committee has a right to “participate” on the same issue.
 the policy committee may request any hazard identification information from the employer, and
has access to any OHS reports the employer has
 the policy committee meets at least quarterly
Summarizing the requirements for workplace health and safety committees in the Canada Labour Code,
Part II:
 these are functionally the same as “joint health and safety committees” or “occupational health
and safety committees”, terminology used in other jurisdictions
 if there are 20 or more employees at a “work place” then a work place committee is required
 a work place committee is not required on a ship
 the Minister may exempt a work place from having a work place committee if it is “relatively free
from risks”
 a committee established under a collective agreement may continue as a work place committee
 the duties of the work place committee are broad and should be carefully examined
 where there is no policy committee, a work place committee does some of the activities of a
policy committee
 as in the case of policy committees, the work place committees “participate” in decisions
 the request for information and access to report powers are the same as for the policy committee
 the work place committee meets at least nine times a year (one can only assume that July,
August and December are the missing months)
Summarizing the requirements for both policy committees and work place health and safety committees
in the Canada Labour Code, Part II:
 committees in general have to have at least two members

 at least half the committee members do not exercise “managerial functions”
 note that “managerial functions” is a labour relations test used to separate out who can vote for a
union and who cannot during a certification drive; it is a fairly high level of authority and control,
and so many forepersons and supervisors will not be considered to be exercising managerial
functions
 the union selects the worker representatives on the committee
 if non-unionized, the employees select the worker representatives
Law and Ethics (LE)
 non-employees may be on the committee if agreed to in a collective agreement

 committee members may have “alternate members” fill in for them
 there are two chairpersons – one chosen by the worker reps and one chosen by management
reps
 the chairpersons jointly assign committee members to tasks, having at least half of members
assigned always being worker reps
 records and minutes of meetings must be kept and must be available to a health and safety
officer
 committee members can take time from work to do their duties and receive their regular or
premium rate of pay
 there is no personal liability of a committee member for anything done in good faith (bona fides)
 committees establish their own rules of procedure
 a committee term of office cannot be more than two years
Summarizing the requirements for health and safety representatives in the Canada Labour Code, Part II:
 be clear that a health and safety representative is not the same thing as a worker representative
on a work place committee
 at a workplace, one would have either a work place committee or a health and safety
representative, but not both
 there is a single health and safety representative at any location with 1-19 employees regularly
there
 note that many provincial jurisdictions do not require a health and safety representative if there
are only a handful of workers at a location, but federally, if there is one worker at a location, that
worker is his or her own health and safety representative
 the health and safety representative (HSR) cannot exercise managerial functions
 the union chooses the HSR
 in non-unionized work places, the non-managerial employees choose the HSR
 the duties of the HSR should be examined carefully, but generally they are a scaled down version
of the work place committee’s duties
 the request for information and access to report powers are the same as for the policy committee
and work place committees
 HSRs can take time from work to do their duties and receive their regular or premium rate of pay
 there is no personal liability of an HSR for anything done in good faith (bona fides)
Interaction with Employer and Employees

Review the duties of the employer under the Canada Labour Code, Part II. The employer has positive
duties to assist committees and HSRs. Similarly, employees have a positive duty to co-operate with
committees and HSRs.
Interaction with the Minister (or Official Delegated by the Minister of Labour ODML), formerly the
Health and Safety Officer
As employees, all committee members and HSRs are have a duty to co-operate with the ODML. The
officer should generally ensure that a worker representative is present when engaged in various activities
in the work place. This facilitates the ODML’s quick understanding of what is going on in the work place.
We can call this the interaction between the “external auditor” and the “internal auditors”. Note also the
requirement that committee minutes be available to the ODML. This is more significant that many
assume. Skilled reading of minutes can tell the officer about the health of the IRS, the effectiveness of the
committee and the identity and location of hazards and contraventions the ODML should go and take a
Law and Ethics (LE)
personal look at.
Internal Complaint Resolution Process

Under the IRS philosophy, there should be on-going regular interaction between workers and the
supervisor about work place hazards and their control. In the best of all possible worlds, this interaction
should be frequent, fast, flexible and informal and in the discretion of the worker. If this interaction fails,
the worker should turn to the worker representative for assistance. The Canada Labour Code, Part II
contains a formal process for this interaction, and makes it non-discretionary:
 the worker shall make a complaint about a contravention or hazard to the supervisor
 the worker and supervisor try to resolve the complaint
 either may refer an unresolved complaint to the work place committee chair or HSR
 the worker and management reps or the HSR investigate the complaint
 the investigator(s) inform(s) the worker and employer in writing of the results of the investigation
 the investigator(s) may make recommendations to the employer about the complaint
 if the investigator(s) conclude(s) that the complaint is justified, the employer shall respond in
writing how the employer will resolve the matter and then shall resolve the matter accordingly
 if the investigator(s) conclude(s) that there is a “danger”, the employer shall ensure the work
stops
 if the employer does not agree with the results of the investigation, or the employer has not
responded properly, or the committee members can’t agree, the complaint may be referred to an
ODML
 the ODML may investigate the complaint and issue a direction or may require the parties to
continue to seek to resolve the matter
Whether this process adequately fulfills the IRS philosophy is open to debate. It does put a lot of
emphasis on the worker-supervisor relationship initially, which is good, but it does neglect the rest of the
individuals in the IRS, such as managers. It is a formal process and rather bureaucratic. It is also very
negative and traditional in its focus on “complaints” as opposed to a more modern view of the IRS which
seeks to stimulate individuals to come forward with positive and creative ideas on how to improve
processes and thus reduce risk.
The Right to Refuse Unsafe Work

The right of an individual worker to engage in a work refusal is one of the traditional three rights of
workers. According to the IRS model, the worker would normally be engaged in an informal process of
problem solving with supervision on a routine day-to-day basis without exercising the right. The right to
refuse unsafe work would normally be exercised when the main elements of the IRS are not working from
the worker’s point of view. A work refusal triggers an internal investigation of the problem. This
investigation involves the worker representative and usually individuals from management other than the
worker’s direct supervisor. Usually this internal investigation would resolve the matter. If not, the
government agent is called in to make a decision.
The CRSP should know the procedure in his or her own jurisdiction well enough to give direct advice
during the course of a work refusal. The federal process may be used on the CRSP exam as an example.
There are many subtleties and sub-issues regarding work refusals, the resolution of which will depend a
great deal on the specific jurisdiction, but the CRSP should be able to “spot the issues”.

 work refusal
Law and Ethics (LE)
 danger
 reasonable cause to believe
 disciplinary action
 susceptible worker
 group refusal
 mass refusal
 reprisal
 reverse onus of proof
Summarizing some common issues involving the right to refuse dangerous work (primarily federal):
 the right to refuse dangerous work is a true right, the worker may refuse to work; it is in the
discretion of the right-holder
 the worker may refuse if he or she has “reasonable cause to believe” that there is a “danger”
 the use of the word “reasonable” should mean an objective test, but great caution should be
exercised here as across Canada many adjudicators have been reluctant to go beyond a
subjective impression by the worker about the danger
 examine the definition of “danger” in the definitions section of the Canada Labour Code, Part II,
as it is very broad. It was amended as of October, 2014 so as to clarify it
 it is an issue in any jurisdiction how far the cases have gone broadening the right to include
refusing to work for ergonomic concerns and long-term health concerns
 work refusals are usually not allowed under two scenarios:
(a) the refusal puts the life, health or safety of another person directly in danger; or
(b) the danger referred to in subsection (1) is a normal condition of employment.
 jurisdictions may list the occupations that have a limited (or no) right to refuse dangerous or
unsafe work
 workers on ships and aircraft have a limited right to refuse, at the discretion of the captain, when
the airplane or ship is in operation. A plane is in operation when underway under its own power
and a ship is in operation when cast off from a wharf
 Federally, the refusing worker shall report the refusal to the employer without delay (in most
jurisdictions it has been an issue about the words used to indicate the report of a “refusal” as
opposed to a routine complaint)
 if a different procedure for handling refusals exists in a collective agreement, the worker must say
which procedure he or she is choosing (this respect for collective agreements does not exist in all
jurisdictions)
 The procedure under the Canada Labour Code for handling work refusals changed substantially
in 2014 and is no longer representative of work refusal processes across Canada. The new
procedure requires two written investigation reports from the employer and the committee, and
then the Minister decides whether to attend for an investigation. The changes were intended to
cut down on frivolous, vexatious or repetitive work refusals.
 The following describes the pre-2014 CLC process, which is more similar to the other Canadian
jurisdictions. In most jurisdictions, the issue is reported to the worker rep (worker rep on the
committee or the HSR. It is then up to the employer to do the investigation (we can call it the
“stage one” or “internal” investigation). The investigation by the employer is in the presence of the
refusing worker and the worker representative. Our IRS philosophy tells us the role of the worker
rep is to be an auditor of the process, to make sure it is a fair and objective investigation and that
no pressure is put on the refusing worker; however, nothing precludes the worker rep from
Law and Ethics (LE)
offering advice, but be clear that the duty to investigate properly is on the employer. If there is
more than one refusing worker, the workers choose a representative from among them to be
present. The refusing worker may choose not to be present (not the case in all jurisdictions). The
employer may disagree there is a danger, or may agree and take steps to resolve the matter but
the refusing worker may not agree with the remedies taken – in either case, there is a
continuation of the refusal and the employer shall notify the health and safety officer (other
jurisdictions may say that any of the parties may notify the officer). The committee or HS
representative is kept informed by the employer of the situation. There is protection, not found in
all other jurisdictions, for the pay of other workers who may have to stop work because of the
work refusal (particularly significant in assembly line type work). There is protection, not found in
all other jurisdictions, for the protection of the pay of workers arriving for the next shift who also
may not be able to work. The employer may assign “reasonable alternative work” to the other
workers affected by the work refusal. The officer called in (the second stage or “external”
investigation) shall investigate in the presence of the work place parties. The officer must make a
decision as to whether, at the time of the officer’s investigation, there is a “danger” or not (there
are bizarre cases where the danger comes and goes and does not happen to be present when
the officer is present). The officer must give written notice of his or her decision. Prior to the
presence of the officer, meaning during stage one, the employer can assign the refusing worker
“reasonable alternative work” (other jurisdictions may not allow this at stage one). Prior to the
presence of the officer, meaning during stage one, the employer can assign a co-worker to do the
work that is being refused provided the co-worker is qualified, has been fully informed about the
refusal, and the employer believes there is no danger (other jurisdictions may not allow this at
stage one); this may make sense in the case of the phobic or allergic worker where no one else
has that worker’s sensitivity; but the employer must take extreme care from a due diligence
perspective at this point as the employer now “knows” about the hazard. If the officer concludes
there is a danger, the officer shall issue a direction (order). If the officer concludes there is no
danger the worker must return to work, but may appeal the decision of “no danger” to an appeals
officer within 10 days
Reprisals
The right to refuse dangerous or unsafe work is rather meaningless unless a worker is protected from
“reprisals” by the employer. The protection of workers exercising their right to refuse dangerous work is
only one of the many activities of workers under OHS legislation that must be protected. A worker should
not be subject to reprisals for speaking to officers or inspectors, or his or her rep, or making complaints, or
testifying in legal proceedings, or agitating for a committee where there isn’t one and there should be.
Reprisals can be subtle and the prohibition against reprisals should be able to deal with harassment and
coercion as well as formal terminations and disciplinary measures. Most jurisdictions will have a “reverse
onus” clause, meaning that once a worker has made an allegation of a reprisal, the onus switches to the
employer to show that a reprisal didn’t take place. The Canada Labour, Code Part II states:
General prohibition re employer

147. No employer shall dismiss, suspend, lay off or demote an employee, impose a
financial or other penalty on an employee, or refuse to pay an employee remuneration in
respect of any period that the employee would, but for the exercise of the employee's
rights under this Part, have worked, or take any disciplinary action against or threaten to
take any such action against an employee because the employee
(a) has testified or is about to testify in a proceeding taken or an inquiry held

under this Part;
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(b) has provided information to a person engaged in the performance of

duties under this Part regarding the conditions of work affecting the
health or safety of the employee or of any other employee of the
employer; or
(c) has acted in accordance with this Part or has sought the enforcement of
any of the provisions of this Part.
A worker who alleges that the employer has engaged in a reprisal as above has 90 days to make a
complaint to the Canadian Industrial Relations Board. If a worker is complaining about a reprisal for a
work refusal, the worker must have gone through the steps in the work refusal procedure. Unlike other
jurisdictions, a worker doesn’t have the option of taking the reprisal complaint to an arbitrator, but must go
to the Board. The Canada Labour Code, Part II does have a reverse onus clause. The Board has broad
powers and can reinstate the worker, rescind any discipline, order back pay, etc.
Competency LE5: Ethical Theories

The CRSP should possess a basic understanding of ethical theories. Such an understanding will help the
CRSP identify issues of professional ethics and resolve them.
The CRSP is a certificant of the Board of Canadian Registered Safety Professionals. The CRSP must
agree that he or she will abide by the Rules of Professional Conduct (Code of Ethics -- or “the Code”) of
the BCRSP. If a CRSP breaches the Code as determined by the BCRSP, then one outcome can be the
suspension of the designation “CRSP”. An understanding of ethical theories will aid in interpreting and
applying the BCRSP’s Code.
In this Competency we will address some preliminary issues such as terminology, the importance of
professional ethics and the differences between ethics and both law and science. We will then review a
number of different ethical theories. How to use these ethical theories in ethical reasoning to solve
problems will follow. In subsequent Competencies we will cover the BCRSP’s Code in detail and examine
specific issues in professional ethics.
Prior to delving into various ethical theories, the CRSP should understand some basic terminology such
as “profession”, “ethics”, and “professional ethics”. Ethical theories apply to many areas of human
endeavour including the behaviour of professionals. Professional ethics differs from other areas of ethics
primarily in the nature of the problems under consideration. Professional ethics does not involve ethical
theories or perspectives that are peculiar or special. That is, the ethical theories are universal but the
problems they are applied to can be very specific to certain professions.
There is a tendency for some to view professional ethics as a set of codified rules that professionals must
follow, rather than a way of thinking when there are no precise rules. Ethical principles and values are not
the same kind of thing as legal rules. Ethics and law are related, but they are not the same.
Some people may expect that there is only one best ethical theory or perspective to use. In science, we
do not have a set of alternating theories that we are free to pick and choose among. There is an
accepted, reigning theory of the day, that is used until overthrown or amended. In ethics, there are
alternate and legitimate ways of seeing the world. The CRSP should be familiar, in general terms, with
some of the traditional ways of thinking about ethics. The next step is to be able to apply those
perspectives to problems that arise in professional practice.
Law and Ethics (LE)
Some Basic Terminology

“Professional ethics” helps a professional choose what to do when faced with a problem at work that
raises a moral issue. The area of “professional ethics” is a subset of ethics in general; it is concerned with
those issues of an ethical nature that arise between the professional and the client, between
professionals, and between professionals and third parties. Professional ethics is about the standard of
care the professional is living up to regarding competence, conflicts of interest, honesty, respect, courtesy
and other values.
Who is a “professional”? A narrow definition of “professional” is a self-regulating occupational group

capable of legally prohibiting others from practicing. In a broader view of a profession, as described by
Brincat & Wilke, a profession would possess the following elements:
 group identity
 shared education, training (requirements for admission)
 special, uncommon knowledge
 knowledge used in the service of others (positive social need)
 involves individual judgement, some autonomy in decision making
 adherence to certain values
 penalties for substandard performance
To meet this latter description, you are not a “professional” until you are a member of a group of
colleagues which has articulated a set of standards and values and can enforce them, at the very least,
by exclusion from the group. CRSPs and other OHS practitioners in Canada are not professionals in the
narrow sense because they are not members of a statutorily protected group, such as nurses, engineers,
lawyers or physicians, who can use the courts to prevent people from engaging in their practice areas.
But OHS practitioners are certainly professionals in the broader sense if they have been accepted into
one of a half dozen or so safety and health organizations that enforce a code of ethics – e.g. the BCRSP.
We are obviously taking the broader view here.
The terms “morality” and “ethics” are often confused. There is a technical distinction between them.
People engage in moral behavior whether they think about it or not. They care for others, keep promises
and secrets, listen to others’ points of view, and so on. When you think about morality, then you are doing
ethics. Morality exists without ethics, but ethics requires morality to exist in order to reflect upon it. We can
all go out and play a game of football, but if we sat down to discuss our play and plan our strategy we’d
be doing what ethics does with morality. We tend not to keep the two terms strictly distinct in what follows.
Scope of Professional Ethics

Professional ethics is a subset of ethics. Many of the values and principles found in professional codes of
ethics are generally applicable to life. It is usually the kinds of problems that professionals face that define
the scope of professional ethics. Very important are the sets of relationships that the OHS professional
has with others:
 the workplace parties (the employer, employees, contractors, visitors, etc.)
 the client if in a consulting practice
 colleagues in the profession, and related professions, whether competitors or not
 the public at large, outside the workplace
 regulators
 the profession as an institution or community
Law and Ethics (LE)
 the ultimate user of the employer’s goods and services

 others
There are many areas of overlap between professional ethics and other branches of ethics, one obvious
area being “business ethics”. The latter’s scope is the general ethical climate in the organization and the
management system elements that can improve that climate. The state of business ethics in one’s
organization can obviously assist or obstruct the OHS professional in his or her efforts to be ethical in
professional relationships. The kinds of problems considered in business ethics will tend to emphasize
ethical decision-making in sales, advertising, obtaining contracts, use of competitors’ confidential
information, disclosure to the public and regulators, whistle-blowing, fair treatment of employees, etc.
Many of these problems will sometimes present themselves as issues for the OHS professional. Much
insight and guidance can be obtained by studying general texts on business ethics.
Another closely related subset of ethics is “engineering ethics”. Engineering ethics is a subset of
professional ethics. Some CRSPs may be engineers. Many texts on engineering ethics can be very
helpful in providing case studies of interest to the OHS professional. As engineers “design for safety”
there is obvious overlap with the safety professional’s concerns. There are many issues that arise in
project management whereby the engineer may have conflicts with other organizational groups such as
production and marketing – some of these issues are less relevant to the OHS professional.
Nevertheless, we can admit that professional ethics for the OHS professional has developed in part from
the experience of engineers. A comparison of the BCRSP’s Code with engineering codes of ethics
reveals close similarities in values and principles.
Ethics for health care professionals is another closely related subset of professional ethics. An
occupational health nurse or an occupational physician would have many issues arising out of the patient
relationship that would not be the same as the issues arising from the OHS professional’s relationship
with the workforce at large. “Compassion”, for example, is an express value for the health care
professional that is usually not found in engineering codes of ethics.
Professions such as medicine, nursing and law relate primarily to persons. Engineering and other
science-based professions relate primarily to things. The OHS profession relates to both people and
things, and, it can be argued, is inherently more complex in its ethical concerns.
The Importance of Professional Ethics

Thinking now about ethics, when it comes to right and wrong action, the OHS professional must be able
to analyze a situation from an ethical perspective and choose the right course of conduct. The study of
professional ethics can help the OHS professional in thinking through work problems that are not purely
technical or scientific, but which have an element of value to them. No amount of legal or ethical rules will
relieve the OHS professional of the task of thinking through an ethical problem. The OHS professional
must develop skill in thinking about ethics so as to deal effectively with ethical problems for which there
are no clear or express ethical rules.
The primary reason why professional ethics is important is because it serves to protect the workplace
parties as well as the public from hazards in and arising out of the workplace. People exposed to
workplace hazards expect that those who have control over those hazards, those who make decisions
about the hazards, and those who have knowledge of them, have their priorities straight – protection of
human life and health should come first. This is of particular concern, as we have mentioned, when
existing legal rules or procedures do not cover the situation. We might say that this expectation is the
result of an implicit, unwritten social contract. If one has doubts about this, consider the moral outrage
exhibited by the public when its faith in those it trusts has been betrayed. As the idea of an “OHS
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professional” has crystallized over the years, and as OHS professionals have evolved towards a true
profession in the classical sense, this expectation has grown.
Today, there is more discussion and debate about business and professional ethics than ever before.
Many professional groups have reconsidered and up-dated their codes of ethics and have sought to
provide the members with training or other guidance.
There is a self-interested reason why OHS professionals should review professional ethics. It is an age-
old saying, but true none-the-less, that one’s most valuable possession is one’s reputation. As we will
see, that self-interest is not in itself a proper reason to be ethical. One should be ethical because being
ethical is an end in itself.
Professional ethics is not only there to protect the workplace parties and the public and to guide
individuals in the short course, it also exists to maintain the honour and prestige of the profession as an
institution and as a community of professionals over the long term. A practicing OHS professional today
enjoys the prestige and honour of the profession as established by past generations of OHS
professionals. In return for this gift, the practicing CRSP professional owes a duty to future generations to
maintain the integrity of the profession. This is an idea from “inter-generational ethics” – what we owe
future generations.
Reported Issues in Professional Ethics

In a study by Burgess and Mullen on ethical complaints of industrial hygienists, some of the most
commonly reported behaviours are listed below, ranked from more common to less common:
 Plagiarism
 Failure to protect confidential data
 Failure to share credit on a report
 Fabrication of data
 Criticize the ability/integrity of colleague for own gain
 Holding back or disguising data
 Design of sampling strategy to favour a specific outcome
 Destruction of data that contradicts desired outcome
 Deliberately not reporting an incident
By far, the most frequently cited reason for the misbehaviour was “economic pressure”. Patricia Logan, in
interviews with American industrial hygienists, found some other factors causing pressure:
 Increased pressure when hygienists become consultants rather than in-house staff due to
restructuring
 Working in foreign countries where local standards are lower than in the US
 Increased pressure to win contracts, causing OHS issues to fall by the wayside
 Lack of legal standards thus leaving hygienists to argue about the “rightness of doing something”
rather than an argument based on compliance
 Working on a contingency basis
 Decrease in job security dampening outspokenness.
No doubt similar problems and pressures are to be found in the OHS profession generally.
Ethics and Science: Different Ways of Thinking

Law and Ethics (LE)
In OHS, we are all familiar with the concept of “reasonableness” imbedded in due diligence. Samuel
Johnson said that thinking reasonably is thinking morally. The objectivity in professional ethics comes
when we ask what the reasonable peer would do in the circumstances with the ethical problem. The
reasonable peer is a hypothetical standard – a person who is well-informed, well-intentioned, open-
minded, calm, detached but empathetic, unbiased, sane, sober – a condition we are capable of even
though we all lack consistency. We can solve problems in professional ethics (and all of ethics) only when
we can put ourselves into such a state of mind. Members of discipline committees must be keenly mindful
of this when deliberating.
It is a fallacy to believe that all that is non-scientific is “subjective”; hence ethics is subjective. Something
is subjective if the test for the truth of it is merely what a person’s opinion is. We use subjective tests in
the law sometimes – we are interested whether the defendant in a murder trial intended to kill the victim.
It’s not relevant whether that intention was reasonable or made sense to anyone else.
Many people think of ethics as being “subjective” or “relative” – “it’s all a matter of personal opinion”. To
say that ethics is subjective is to say that what is right is what an individual believes is right regardless of
what an impartial observer might believe or what standards might be accepted in a society. You therefore
cannot morally condemn the murderer or child molester – if they thought they were right.
When we say that something is “objective” in a moral sense, we mean that the rightness or wrongness is
outside a person’s opinion; there is an external standard by which to judge an individual’s opinion. It could
be the word of God, or societal convention, or reason, or a universally held sentiment or what an agreed
upon role model would do. Indeed, it can be said that the major ethical theories differ in what the standard
is that we measure against.
Moral relativism is ultimately futile and nihilistic. There can be no real debate, guidance, judgment or
resolution. Those claiming relativism are usually in a position of self-rationalization. Moral absolutism is
not a tenable position either, as it leads to inflexibility and a harshness that creates its own injustices.
“Objectivity” in professional ethics means that there are principles and values outside of oneself that the
members of the community share and can discuss, and that individuals will be measured against.
Professional ethics wouldn’t mean anything at all if ethics were subjective.
How does one recognize a moral problem within professional ethics? Is the issue one of “right” or “wrong”
action? Is the issue one of “good” or “bad” motives, methods or goals? Is there a “value” at stake? Is the
terminology not descriptive, but prescriptive, involving words like “should” or “ought to”? Where language
is prescriptive it is a sign that we are not entirely in the realm of science or engineering.
To reason ethically, we will see that we do not use the scientific method. There isn’t a calculated right or
wrong answer. There can be several morally permissible courses of action available simultaneously,
some are “better” than others. It is the “weight” of reasons that will usually tell one which route to take.
People with a science background or perspective have to be patient and open-minded when delving into
ethics.
Example 1. Suppose two CRSPs are arguing about whether a device is “safe”. They may be arguing
without the necessary facts. If they can determine whether it is defective or not, the argument is resolved.
This is a “yes/no” question about the device. This is not an ethical argument, even though it seems so at
first, as what is “safe” is not a value free concept.
Example 2. Two CRSPs are arguing about whether a device is “safe”. Factually, the device has a certain
probability of failure. They are arguing about the meaning of “safe” – its definition. But they are not
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arguing about the value aspect of “safe”. They would both agree that “safe” involves protecting human life
as a good and they would both agree that they “ought” to try to get the risk down as low as they can
reasonably get it. They just can’t agree about the factual, existing level of risk the device poses. One
needs to distinguish between what the risk is and what “ought” to be the risk. Until the two have decided
what the risk is (not an ethical question), they haven’t got to the question of what it “ought” to be (which in
this case they would agree on), and so the problem is not truly an ethical one.
Example 3. Two CRSPs are arguing about whether a device is “safe”. They are clear about the existing
risk, which is low, but they are disagreeing about how low the risk should be. Joe says the risk should be
as low as they can reasonably get it. Sally says it should be as low as is “acceptable to the party facing
the risk”. She produces material from an environmental risk management course that clearly states the
principle she is advocating. Sally says she has fully explained the probability and severity of the hazard to
the affected employee, who says “he has no problem with that” and will “accept the risk”. Joe argues that
there is a slightly different way to use the device, which would admittedly take longer, but which would
reduce the risk as low as one could reasonably get in the circumstances. The worker’s supervisor agrees
with Sally and says the extra time doing it Joe’s way would delay a crew of 10 people an hour’s worth of
production a day. The supervisor says the employee is quite happy with the situation since the supervisor
has agreed to let him leave work early on Fridays if he’s prepared to do as Sally suggests. Unlike the first
examples, this scenario involves an ethical issue – an issue of value ... an argument between two
“oughts”.
We are jumping ahead and assume we know something about ethical theories at this point in the
example. Would you be a utilitarian and attempt to quantify the costs and benefits of doing it Sally’s way
and Joe’s way? (We would of course need more detail to actually do a cost-benefit analysis.) Assume for
the moment, that a consequentialist perspective would find us agreeing with Sally. A Kantian analysis
might superficially come to the same conclusions on the basis of the employee’s fully informed consent.
Given our discussion of ethical reasoning whereby a strong position is one that has more than one ethical
theory on side – and getting utilitarianism and Kantianism saying the same thing is an achievement.
Kantianism is not paternalistic and relies heavily on the concept of informed consent. But is there a
factual problem that undermines informed consent? Is the promise of “time off” obscuring the issue?
Is there not a more basic problem about the difference between “as low as reasonably possible” and
acceptable risk? If one is locating a sewage lagoon, the environmental issue might well be one of whether
the local community will accept the risk in exchange for some benefits. Risk acceptance is a legitimate
concept in public risk management in a way that it is not in the controlled workplace environment. Risk
acceptance in the workplace has historically been side-stepped in favor of specific regulatory standards
and general duty clauses because of doubt about freely given consent where there are great
opportunities for subtle (or not so subtle) coercion and inducements. If the safety law in this jurisdiction
had a specific rule requiring the work to be done Joe’s way, then the argument shouldn’t be taking place
at all – a legal rule is trumping ethical debate in this case. If the OHS law in this jurisdiction had a general
duty clause that “all reasonable care had to be taken”, would that trump the issue in favour of Joe? The
answer would be “yes” because what is reasonable would not be up to the subjective opinion of an
employee being asked to accept the risk. The test for reasonableness is an objective test of what the
“reasonable peer” as an OHS professional would do (or at the very least, what the reasonable employer
would do – which we believe is what the reasonable OHS professional would do). Many factors would
come into play in deciding what is reasonable, including cost. Even if there were no general duty clause in
this jurisdiction we could still use the ethical version of the same principle of reasonable care.
Ethics and Law

Law and Ethics (LE)
The difference between ethics and law should be understood. Many issues of right and wrong, good or
bad are not the subject of legal rules. But many are. An ethical rule that has been expressed as a legal
rule is then enforceable using the power of the state. There can be serious non-legal repercussions of not
following an ethical rule – no friends, social ostracism, for example. For professional groups, the breach
of an ethical rule may not itself be the breach of a legal rule, but the consequences of expulsion from the
group will have legal consequences.
Law involves an authority external to the individual. It is mandatory. Ethics involves an internal authority
and is not mandatory (unless it has been adopted into law, and thus transformed). To comply with a legal
duty you need not agree with it and you could be complying solely because of fear of the penalty or fear
of social disapproval. To comply with an ethical duty one should be fulfilling the duty because one
understands and agrees that is the right thing to do. We can say that to be ethical one fulfills a duty
because it is a duty and not because fulfilling the duty results in some other desirable thing. This doesn’t
mean there are not consequences for breach of ethics and professional ethics in particular. But if a
professional is complying with a code of professional ethics merely out of fear of a disciplinary response
from the professional group, then one is not truly behaving ethically.
What is the relationship between professional ethics and the law? As there is a moral duty to obey the law
(with some rare caveats), we can say that an OHS professional who is in breach of the law is likely to be
behaving unethically. It certainly raises the question whether a convicted OHS professional (convicted for
something relevant to OHS practice) should be examined by the governing professional body’s discipline
committee. But such cases are rare (but not non-existent).
One example of the interplay between law and ethics would be where an OHS consultant has signed a
contract promising strict confidentiality about what the OHS professional finds out in the workplace. If an
extremely serious hazard is discovered and the employer wants the OHS professional to remain silent
and not to warn anyone, then the OHS professional is in the position of having a conflict between a legal
contractual duty and an ethical duty. There are times when a professional has to take the consequences
of a legal breach so as to do the ethically right thing. Being aware of the potential for such conflicts means
that the OHS professional will likely be very careful about entering into contracts that can lead predictably
to conflicts with professional ethical duties.
Obviously one can be unethical without behaving illegally. It is a common rationalization of unethical
behaviour to say “well, it wasn’t illegal, so who cares?”. It is perhaps the major point of professional
ethics, though, to deal with scenarios that do not involve illegality. Professional ethics covers far more
issues than the law does. Many of the issues are imbedded in messy and complex factual situations, so
ethical issues tend to be harder to identify than legal issues. We should have more sympathy when
someone says they were confused or ignorant or thoughtless about a moral issue, as opposed to a legal
problem.
It is fair to say that the proliferation of legal rules in modern times has increased the complexity of ethical
problems in the workplace. If one is ethically bound to obey the law and to consider the rights and values
that the law is protecting, then there are many more circumstances when there are potential ethical
conflicts. In days of old, for example, when the environmental protection or human rights were not well
articulated, they would not have entered into ethical problem-solving to the degree they have today.
Ethical Theories
One risks being superficial in attempting to summarize the major ethical theories. By the time one has
sufficiently explained the technical philosophical terminology (e.g. “will”, “happiness”, “utility”, “goods”,
“universalizability”) necessary to fully understand a theory, the reader has fallen asleep or has gone to
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make dinner. But our purpose is to help OHS professionals make decisions, and so we will try to capture
the main points of the most common theories and then focus on how to use them (rather than debate
their strengths, weaknesses and contradictions).
Ethical theories tend to differ on which part of reasoning is most important – the rightness and wrongness
of actions, the goodness or happiness to be achieved by emphasizing the consequences of actions, or
the kind of person (exhibiting certain virtues as character traits) that one aspires to be.
We all possess moral theories, whether we’re fully aware of them or not. We get them from family
upbringing, religion, culture, reflection and education. There are two broad categories of moral theories.
There are action theories (“what course of action should I take?”) – these are concerned with
consequences for the community, and the rights and duties of individuals. Second, there are status
(“being”) theories (“what kind of person should I be?”). These involve virtues, character and relationships.
Utilitarianism. A moral theory that emphasizes consequences is “utilitarianism”. Utilitarianism is

associated with philosophers such as Jeremy Bentham, John Stuart Mill, Richard Brandt and Peter
Singer. Here, the consequences of actions are important, not so much the action itself – hence we can
call this a species of “consequentialism”. Originally, utilitarians focused on the individual’s choice of what
would lead to the greatest pleasure. The hedonist would attempt to choose what leads to the greatest net
sensual pleasure. This was viewed as rather crude. In what we now call “act utilitarianism”, pleasure was
upgraded to “happiness” as the consequence to be maximized, happiness being understood as a more
cerebral type of “satisfaction”. As well, the assumption was that a person could appreciate that others
also desire happiness, and hence the aim should be “choose the greatest happiness for the greatest
number of people”. An act is right only if it tends to result in the greatest net happiness. All acts are
potentially permissible; it all depends on the consequences. Killing an innocent person is not necessarily
wrong. All persons count equally in the analysis, but it’s possible that individuals may be sacrificed for the
greater good. An immediate criticism is that some obviously repellent actions might be justified by this
logic.
A proper utilitarian analysis involves anticipating all the positive and negative outcomes of all alternative
actions, measuring them, and then choosing the path with the greatest net outcome for all. This may
appeal to the scientist or engineer in us – a quantitative calculation! Some reflection reveals that it is often
impossible to anticipate and measure outcomes. Choosing between apples and oranges is difficult to do
when converting to a common currency like “happiness”.
Utilitarianism is an approach that can become atomistic or overly contextual and specific. I promise to pay
an OHS consultant for his report, but upon receipt I determine that greater utility can be obtained by using
the consultant’s fee to pay for the recommended controls rather than pay the consultant. That is, keeping
promises is not a general rule as one has to always ask “should I keep this promise?”. To overcome the
latter problem, a modern version of utilitarianism called “rule utilitarianism” states that one should abide
by a rule that generally leads to the greatest net happiness. Keeping promises generally leads to greater
happiness in the community even though keeping this promise might have low utility. Richard Brandt is a
modern and very practical rule utilitarian who says the list of such rules should be short and that they
should be easily understood and remembered by ordinary people.
Utilitarianism is closely associated with modern techniques of risk or cost-benefit analysis. When a CRSP
recommends a plan that leads to the greatest net reduction in risk, or works out a solution that has the
greatest net monetary gain, the CRSP is practicing utilitarianism. Our legal system in a democracy is
based in part on the notion that legislators will pass laws that result in the greatest good for the greatest
number. But when it comes to OHS we end up having to measure human lives and we get troubling
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questions such as “what is a life worth in dollars?”, “how do you measure pain and suffering?”, and even
the more fundamental question of whether it is permissible to treat people in this calculating manner at all.
Rights and Duty Based Theories. In rights based theories, a right is a justified claim on someone. An
act is morally correct if it respects and upholds rights. This approach emphasizes respect for persons, the
bearers of rights. The good of the community may be sacrificed for the right of an individual. We may
have difficulties clearly identifying rights and deciding which rights are more fundamental or pressing in
the circumstances. In the practice of OHS, we talk about a right to life and health, or a right to refuse
unsafe work, or a right to know about hazards.
Duty based theories are closely associated with rights based theories, because a right can usually be
fulfilled by enforcing a duty, e.g.: a “duty to tell” about a hazard someone faces that you know about and
which you have control over fulfills that person’s “right to know”. Duty based theories are relatively easier
to work with than rights based theories. Duty is about obligation and responsibility. Moral duties can be
easily converted to legal duties. A duty based moral theory considers motive or intention of the decision-
maker as well as the nature of the act and its consequences (although consequences are of lesser
importance).
Kantianism. Kantianism, named after the philosopher Immanuel Kant, is often viewed as a duty based
theory (and that is the language Kant used), but it can be expressed in a rights form. Rights emerge from
the duty to treat others with respect. Under Kantianism, one decides if an act is right or wrong without
looking at the consequences – so it is an approach that is in contrast to utilitarianism. An act is moral if
the act was done to fulfill a duty – just for the sake of the duty and not because the fulfilled duty brought
the actor any benefits. I have a duty not to steal, but if I do not steal only because I’m motivated by the
good reputation I’ll have, or even if I have the rule utilitarian idea that “honesty is the best policy”
(because we all benefit in the end), I am not, in the Kantian sense, behaving morally.
Reason alone tells us which principles are universal – they are right for everyone and can be followed
without self-contradiction. You should not act on a principle that you would not be willing to have
everyone act on. Kant called a rule that can be “universalized” a “categorical imperative”. Making
promises you don’t intend to keep is not universalizable because you could not accept that everyone
should act this way since the idea of a “promise” would be meaningless. Kant’s maxims are simple and
broad. For example, under Kantianism one has a duty to always tell the truth. As well, taking an innocent
human life is always wrong. A famous Kantian maxim is: “always treat others as ends in themselves and
never as means solely”. People aren’t objects or tools. Treat them as entities with their own agendas.
Consent and agreement are important. I could use someone as a tool – their body as a bridge for me to
cross a mud puddle, as long as the person gave free and informed consent.
Kantianism is at the basis of our modern day concern for human rights – respect for persons. Kantianism
explains why a democratic majority must have its collective will thwarted by the courts if the majority tries
to use the law or state power to violate a right or freedom in a constitutional statement of rights.
To show two ethical theories in sharp contrast ... a hijacked airplane with 200 innocent people aboard is
being about to be flown into a large, crowded building. You are in your own personal fighter jet (to avoid
the complications of “virtue ethics” in military organizations) and you managed to reach the scene in time
to decide whether to blow the airplane out of the sky or not. Do you kill 200 innocent people to save
10,000? A utilitarian will likely say “yes”, a Kantian will likely say “no”. What do you choose? A Kantian
might resolve the matter by assuming that the passengers would have given their informed consent to be
killed if they were asked, just as we treat unconscious accident victims without actual consent (although
one can argue that the cases are not truly analogous). Churchill knew innocent people would die if
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Coventry was bombed, but if he ordered an evacuation then the Nazis would know their code had been
broken and the Allies would have suffered even greater losses in the years to follow. Coventry received
no special warning. A Kantian could not necessarily assume that the residents of Coventry would
consent, as unlike the hijacked passengers, they had four hours in which to escape. Churchill acted as a
utilitarian would.
Kantianism in the workplace, with its great emphasis on truth and honesty, would certainly cause
discomfort. “How did I find the meeting? I cannot tell a lie. It was a .....” The Kantian prohibition against
lying does fit well with the OHS professional’s obligations to be competent, objective and honest when
discussing risks in the workplace.
Certainly OHS professionals are Kantian in their respect for each individual’s life and health. A utilitarian
might say we are successful this year because we had fewer fatalities in the business (a net gain in
happiness), whereas a Kantian would look at a single fatality as a great failure.
Kantianism fits with the human rights element of codes of professional ethics.
Acting out of duty alone and not out of compassion will strike many as a bloodless way to go about ethics.
The major problem is the non-relevance of consequences of actions in determining what is right to do.
This is partially resolved if we say that an exception to a rule is allowed if everyone in similar
circumstances could adopt the exception. Lying is always wrong, except if a criminal is asking you for
information by which he will do a terrible evil – if the exception can apply universally to anyone in your
situation.
To treat employees as a Kantian would require more transparency, honesty, information, delegation of
authority, negotiation and consent on the part of senior management than many organizations have seen
in the past. Kantian respect for persons requires us to cease thinking of employees as a “resource” like
materials, machinery or capital.
When it comes to keeping information from the workplace parties, the Kantian idea of respect for persons
would almost always weigh in favour of disclosure.
Natural Law and Natural Rights. An important moral theory is “natural law”, which has its origins in
classic Greek philosophy and which subsequently became associated with Catholic theology through the
work of Thomas Aquinas, centuries ago. Whether you are a Catholic or not, if you are a participant in
western culture you are likely to identify with central elements of natural law. One of the leading natural
law philosophers today is John Finnis. Human beings, by their very nature sense that certain things are
“good” – life, health, knowledge, play, art, and friendship. These goods are worth engaging in or
protecting “in and of themselves”, not because they are means to some other end. Human life is not
measurable in its value – “life is priceless”. In law we observe this in the breach when a judge says “the
life of your dead child is priceless, but we will award you monetary damages anyway”. We observe the
good directly in law when a Charter or a Bill of Rights states that we have a right to “life, liberty and
security of the person”, or a “right to life, liberty and the pursuit of happiness”. This moral perspective
leads to dilemmas when we engage in cost benefit analysis and quantify life. We can say that life and
health are central values of OHS professional codes – protecting and promoting human life is what we do.
Moral dilemmas occur when we have to balance the risk to life and health against the value of equality in
human rights cases.
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Natural law philosophy has a long history of considering the nature and forms of “fairness”. Fairness
takes some explaining. To be fair is to be just. It is common to speak of “justice as fairness”. Justice is a
branch of morality. Law is based on justice, but justice covers a larger territory than law. Some laws, in
fact, fail a “justice test”. It is best to break down “justice” into its classical forms. These forms of justice
apply to many non-legal situations in the workplace (and beyond). All forms of justice involve a
“balancing” or “weighing” and a conformance to a general standard. People can be said to have an innate
“sense of justice” that causes a feeling of outrage when one of the forms of justice is violated. What is that
feeling you have when someone sails up to the head of the line and butts in? It’s a primitive feeling that
probably arose around the caveman’s campfire when the mastodon steaks were being handed out. While
we all are capable of intuiting fairness and behaving fairly, we need to go beyond the feeling and clarify
our reasons for fairness in order to solve ethical problems more complex than carving the mastodon.
“Commutative” or “corrective” justice tells that it is unfair to leave a harm uncorrected. Fairness lies in
putting people back in the position they would have been in if the harm had not been done. This usually
requires taking from the wrong-doer to compensate the victim. Many areas of law are based on this form
of justice (e.g. tort law).
“Distributive justice” is fairness in distributions. Everything in society is “distributed” in some way.

Distribute X according to a pre-agreed criterion Y (need, ability to pay, merit, status, personhood –
distributive justice actually says nothing about what the distributive criterion should be, only how to
conform to it). We distribute iPads players on the basis of ability to pay, promotion on the basis of merit
and human rights on the basis of personhood. Interpersonal conflicts in the workplace often revolve
around “fair shares” or merit.
“Retributive justice” means fairness in punishments, where the severity of punishment should match the
severity of the harm for which the punishment is imposed (this is not quite the same as “an eye for an
eye” as retributive justice says nothing about the type of punishment, only the matching of gradients –
punishments to harms). Discipline in the workplace, including discipline for OHS infractions, is an
example of retributive justice in the workplace.
“Procedural justice” or fairness in decision-making about others’ interests. “Fairness in the process.” This
requires an un-biased decision-maker – one who doesn’t inject his or her own self-interest into the
decision, one who excludes irrelevant considerations (non-discrimination). The fair decision-maker should
hear both (all) sides of disputes and debates, ascertain facts, not “jump the gun”, or be arbitrary. Fair
notice, disclosure, treating both (all) sides with the same consideration, are all procedural justice issues.
In law we associate procedural justice with procedural rules and the law of evidence. In the workplace,
virtually any decision the OHS professional makes that involves the interests of others will require
procedural fairness. Kantian respect for persons will almost always result in duties for procedural fairness.
Justice requires that one “treat like cases alike”. But justice is not the same as equality of outcome; justice
is concerned with equity. The trick is in deciding which cases are truly alike – a source of conflict and
controversy. Part of the OHS professional’s integrity lies in the consistency with which like cases are
treated alike by the safety professional. One can see that many other words in a code of ethics such as
“objective” and “impartial” can be understood in terms of procedural justice, or fairness.
Virtue Ethics. Virtue ethics doesn’t address action directly. A person of good character will choose the
right action in the circumstances. Aim for developing a virtuous character and the rest will follow.
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A virtue based theory requires that one act for the sake of virtue, or as a virtuous person would. A virtue is
a good character trait – benevolence, justice, loyalty, friendliness, courage, honesty, integrity. A vice is a
bad character trait. In the particular circumstances some virtues may be more important than others. The
more people positively affected by the exercise of the virtue the better and the more virtues called into
play, the better.
Virtue ethics is not deployed in modern times as much as it used to be. It’s an approach that doesn’t fit as
easily with the use of law. But one can see that much of what we talk about in professional ethics is
related to virtue. Professional codes of ethics specifically refer to virtues. If you are a professional you are
a particular kind of person because you must nurture certain virtues more carefully than a non-
professional.
Ethical Reasoning
How should we think about moral problems? We are aiming for a “moral decision”; one that is
prescriptive; one that resolves the issue in terms of what we ought to do. We can only legitimately arrive
at a moral decision if we have an explanation for the decision that is a “moral explanation”. An
explanation is only a moral explanation if at least one (preferably more) of the reasons within the
explanation is a “moral reason”, as opposed to some other type of reason. A moral reason is a
justification that is reasoned (not the result of instinct, sentiment or authority). It should be generally
applicable and not specific or particular to the circumstances. A moral reason, by definition, is not
selfishness. A moral reason involves a moral value, not an economic, legal or other value.
If we only have one explanation leading to one decision, we do not have a dilemma (let alone a moral
dilemma). We only have difficulty if we are faced with two or more explanations leading to two or more
different decisions – then we have a dilemma. Still, the dilemma may not be a moral dilemma.
For example, I promised to write an article to meet a deadline. I also want to abandon my task and go and
smoke a cigar, drink some scotch and watch a Star Trek re-run. What to do? This is not a moral dilemma.
Finishing the article involves universalizable, non-selfish moral values – integrity, responsibility, promises,
and so on. Watching Star Trek instead involves mere pleasure and selfishness. This non-moral dilemma
can be easily resolved morally because it’s no contest.
Many of the issues that people describe as moral dilemmas turn out on examination not to be. They may
be hard, painful and make you unhappy, but they are not moral dilemmas. When you have to choose
between doing something professionally that reduces risk in the workplace, and doing something else
that involves merely making money, aggrandizing yourself, pleasing yourself, putting someone else down,
gaining a new office fixture, etc, etc., you may have a hard choice on your hands, but not a moral
dilemma. This assumes that hedonism and selfishness are neither moral principles nor moral values.
We are faced with a moral dilemma when we have two moral explanations leading to conflicting moral
decisions. The three common ways out of such moral dilemmas are:
1. come up with a creative third alternative that satisfies both moral outcomes;
2. if possible, act sequentially on each to satisfy both; or
3. evaluation will show which is the stronger moral explanation and decision.
Strong moral reasons are those that are relevant to the decision, are concerned with the person most
affected by the decision and are focused on values of central importance. Weak moral reasons are the
opposite. Strong moral explanations use several different “moral perspectives” (consequences, motives,
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rights, virtues, etc.), consider all persons affected, and deploy many values. Weak moral explanations are
the opposite.
By “moral perspectives”, we mean “moral theories”. We have discussed several main moral theories
above. Moral theories help us decide which element of a moral problem is the most important – (is it the
consequences, a particular right, duty or virtue?). Moral theories help us to resolve conflicts between
rules and conflicts between values.
A moral philosopher may seek to persuade you to adopt a particular moral theory as your sole
perspective. In reality, it is extraordinarily difficult to be a purist. Most of us are bearers of all western
moral traditions in varying degrees, and we tend to shift from one perspective to another depending on
the circumstances. When it comes to professional ethics, we find that the cases are so messy,
idiosyncratic and fact-based, that the proper approach tends to emerge “bottom up” – from the case –
rather than “top down” – from theory. Following Brincat and Wike, a good moral framework to use is to:
 appeal to a rule (rightness and wrongness)
 using a moral theory (a perspective), while
 applying a value
…so as to construct an moral explanation for a decision. We are using rules, theory and values to come
up with a number of reasons supporting the explanation. If more rules support the explanation than less, if
several moral theories point in the same direction rather than just one, if more values or virtues can be
promoted than fewer ... you have a stronger set of moral reasons for your decision, and a better decision.
Process helps considerably. Debate and analysis lead to better decisions. Canvassing those who are
affected, listening to several sides to a dispute, keeping an open mind… all lead to better decisions than
when one contemplates what to do in isolation.
Trevino and Nelson have described a practical eight step process that can help one to think through an
ethical problem. It was prepared in the context of “business ethics” but it can easily be modified for
professional ethics.
1. Gather the Facts

No amount of facts on their own will resolve an ethical problem, but all ethical problems that a
professional would face involve facts. “Oughts” need “is’s” to work on. The facts are relevant in the
process of thinking ethically. If you get the facts wrong you can get an incorrect ethical response. There is
a mis-perception that a Kantian, for example, uses “pure reason” to solve ethical problems. Pure reason
was a justification of the categorical imperative, but solving real life problems as a Kantian requires facts.
A utilitarian is more attuned to fact gathering as one needs data about consequences to do an analysis.
Collect the historical details of how the situation came about. Who was involved and how? What are the
factual descriptions of peoples’ positions on the issue? Are there laws, policies or agreements in
existence that might have to be considered?
2. Define the Ethical Issues

Using the ethical theories we have examined and the list of values and principles in the BCRSP’s Code of
Ethics try to “spot the issues”. A checklist approach is helpful. Is honesty an issue? Is loyalty? Is
confidentiality? Run through the common virtues at stake. List any rights you can think of that apply.
Trevino and Nelson warn that many of us stop as soon as we identify one or two issues. Best to start with
a broad approach. Consult others, if you can, to see if they spot issues you don’t see at first.
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3. Define the Affected Parties

You will have done much of this task when you gathered the facts. Be a utilitarian and ask what the
consequences will be in terms of who will be affected. Work outwards in concentric circles from the
obvious parties directly involved. Be a Kantian and cast yourself into the shoes of others. What will others
see as their interests? Try the “CNN test” or disclosure method – if the scenario was described on CNN,
who would react strongly?
4. Identify the Consequences

Be a utilitarian again and set out the alternatives, and then ask about the consequences of the
alternatives, both positive and negative. You may not be able to complete this step until after you have at
least visited steps five and seven. As OHS professionals we are used to thinking about the elements of
risk, and we should have relatively little difficulty thinking through the probability of certain outcomes and
the potential severity of the outcomes. How would other people weigh the consequences? Consider
effects both short term and long term. Trevino and Nelson suggest that the symbolism of the alternative
responses be considered.
5. Identify the Obligations

This takes step #2 a little further. Identify the duties that the parties have as well as the people affected by
the performance and non-performance of the duties. What is the rationale behind each duty? It is
unstated, but perhaps thinking in terms of rights that are affected will help as well.
6. Consider Your Character and Integrity

A virtue ethics approach has great practicality. You need not reinvent the wheel. First define your
community, which for an OHS professional would be fellow CRSPs. How would an ideal member of the
community of OHS professionals – a person who embodies the virtues of the profession – solve the
problem? Again, the CNN or disclosure method helps – what would a jury of your professional peers say?
This technique helps to draw us out of our own subjectivity and is a guard against self-interest clouding
judgement. But it is more than that, because you are imagining how a senior, respected peer would
exhibit honesty or loyalty or compassion or promise keeping in these circumstances.
7. Think Creatively About Potential Actions

If faced with an apparent choice between two desired paths or outcomes, are you really limited by those
two? Is there a creative third option that allows you to satisfy the desired outcomes as side effects? Or
perhaps the choices can be satisfied sequentially where they cannot be done simultaneously? Will the
interests of the parties in the scenario change their interests or positions if you give them other options?
8. Check your Gut

Kant would be appalled by this advice. So would the utilitarians. But psychologists tell us that people go
through predictable stages of moral development as they age and sociologists tell us that we internalize
all sorts of norms from our community. Cognitive psychologists have found that there are many modules
of the brain working in parallel and that our verbal-conscious mind receives guidance from modules
engaged in non-verbal-conscious processing. Evolutionary psychologists suggest that our human nature
may have evolved elements of moral psychology – an innate sense of justice, for example. Perhaps the
“goods” that the natural law philosophers say are “self evident” are self evident because of evolved wiring
of the brain. In any event, philosophers of old may have been very distrustful of intuition, but in modern
times we can at least consider that a “gut feeling” may be the product of sub-conscious “fuzzy logic”
working away in our mental backyards. Don’t necessarily hang your hat on it, but if you have a bad feeling
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about a situation there’s a good chance there is something wrong. One way to think about it is that you
should continue to use your reasoning powers until your gut stops warning you.
Here are some further philosophical and practical tips:
1. How is this not an ethical problem, by virtue of factual disputes and definitional problems, which, if
resolved, would leave the path clear?
2. What are the pressures, self-interest, extraneous factors and obvious rationalizations that are
clouding the picture, and, if ignored, would make the correct choice obvious?
3. When thinking about groups or categories of people, imagine a real person as a member of that
group. Think of “Bob the maintenance guy” rather than just “workers”. This helps see things from
the perspective of others.
4. Can you identify all the relevant parties? What are their legitimate interests, as opposed to self-
interest, which, like the decision-maker’s, should be excluded?
5. Is there something about the situation that is creating false urgency, and should you not make a
decision under such circumstances, leaving time to reflect or to consult someone?
6. Can you spot the key ethical issues? What are the key values, rights, duties and virtues you must
weigh?
7. The legal issues will vary somewhat with jurisdiction, but can you identify when a statutory or a
common law (including contract and tort) duty is in effect, effectively taking the problem out of
ethics?
8. When your virtue ethics hat is on, actually imagine a real member of the professional community
you know, facing the problem you are facing.
9. Don’t make any snap decisions if you can avoid it. It takes time to mull over a complex ethical
problem. The fact that someone is attempting to pressure you may end up being an important
factor in how you decide the matter.
10. Don’t tie your hands in advance. Rethink the kinds of consulting contracts you sign if you are an
OHS consultant. Some typical clauses about confidentiality or the reporting of results are just
setting you up for an ethical dilemma.
11. Anticipate in advance that you may need advice and guidance from someone more senior in the
organization or from a more experienced OHS professional outside the organization. Start an on-
going discussion that will allow you to access their advice quickly should you need it.
12. Keep your eyes open for policies and procedures within your organization that may be relevant to
certain categories of ethical problems. The company may already have a policy on the receipt of
gifts from suppliers – so look for it before someone offers you a gift. Be familiar with the
organization’s human rights policy, intellectual property policy, environmental policy, and so on.
13. Practice makes perfect in all things. Analyze problems with an ethical aspect to them when you
are not under pressure or caught in a dilemma. Practice on small issues and get into the habit of
being able to express your reasoning.
14. As the ancient philosopher said, “Know Thyself”. It’s one of those expressions many of us view as
being so vague and banal that it’s worthless. A great obstacle to ethical conduct is self-deception
and rationalization. What are your weaknesses in this regard?
15. Can you identify an ethical theory which will assist you in singling out the key values and their
weights?
16. Are there a number of good moral reasons weighing in on one side of the possible pathways to a
solution?
17. Are there several basic ethical theories giving reasons that are all heading in the same direction?
18. Are there specific obligations or principles in the BCRSP’s Code (or a similar one) that are
particularly relevant?
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19. For any issues which appear novel, can you reason by analogy or extension from existing ethical
principles or obligations in a code of ethics?
20. Have you tried the “CNN test” – how would this look if portrayed on the evening news? Similarly,
have you asked “what would a group of reasonable peers say if presented with your situation?”
Competency LE7: The Duties and Powers of Enforcement Agencies

The CRSP should possess an understanding of the powers of inspectors, Order to Comply, the appeal
process and prosecutions.
If the IRS is working very well, there should be little need for the external authority, the government
inspector or officer, to visit the workplace or to exercise powers to issue Orders or Directions. We call the
entities outside of the workplace with a role to play in OHS as the “external responsibility system” (ERS).
The courts and various safe workplace associations (and others) can be seen as part of the ERS, but the
main element is the government agency in a particular jurisdiction charged with administering the OHS
legislation and enforcing OHS standards. The CRSP should understand the relationships between the
IRS and the ERS.
In some jurisdictions, the government agency is the same for both enforcement of OHS prevention
standards and for workers’ compensation. In others, there will be separate government agencies for
compensation and prevention. Federally, the government department known as Employment and Social
Development Canada (ESDC) – also known as Labour Canada -- enforces the Canada Labour Code,
Part II (the Code) and regulations. The federal agents were called “health and safety officers” up until
October of 2014. At that time, “health and safety officer” was replaced in the Code by “Minister”. The
people who were health and safety officers are now called an “Official Delegated by the Minister of
Labour” (ODMLs). The phrase ODML is not in the Code. Whenever the Code says “Minister” it will usually
be the ODML who will actually be present or be taking the action mentioned. This is unusual. In other
jurisdictions, a department or ministry of labour will refer expressly to “officers”, or will call the latter
“inspectors”.
The CRSP should understand the issues surrounding an “enforcement policy” adopted by a government
agency — is the agent’s role partially educational or promotional, or is the role one of strict enforcement?
What will trigger action by the government body? While jurisdictions vary, there are great similarities
between jurisdictions concerning the powers of government agents to inspect and investigate, to issue
orders or directions, and to lay charges for the breach of the legislation. The CRSP should be familiar with
the provisions in the Code as examples of these.
ERS officer
inspector order direction
unreasonable search and seizure certificate of authority
appeal stay of direction/order time for compliance
judge’s order injunction obstruction
de novo hearing contravention order finality clause
privative clause ODML
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Enforcement Policies
Whether the government inspector will be an “educator” or an “enforcer” or will change hats on you
depends on the government’s “enforcement policy”. The legislation can stay the same over the years
while the enforcement policy changes. The CRSP will seek out the relevant enforcement policies of the
ministries he or she is dealing with. Do not expect consistencies. Different departments or ministries may
have very different enforcement policies even though it’s the same government. Typically, one might find
environment inspectors who are strict enforcers, Public Health Inspectors who are all about education
and have never laid a charge in their lives, and OHS inspectors who tend to be in the middle. Most
enforcement policies will adopt some version of the stair-step model of enforcement – warnings, orders,
charges, injunctions – analogous to “progressive discipline”. Often unstated are the factors involved in the
concept of deterrence, discussed earlier. The inspector will be asking him or herself – “what must I do to
motivate this person to change his behaviour?” and move to the appropriate position on the stair-step
model or “enforcement gradient”. The CRSP candidate should examine the enforcement policy on the
ESDC website.
Canada Labour Code, Part II
Federally, it is the Minister of ESDC who appoints individuals to represent the Minister – usually the
aforementioned ODML. Other Canadian jurisdictions may leave this to a Deputy Minister. Canadian
jurisdictions tend not to require any specific credentials to be an officer or inspector. This is odd given that
Public Health inspectors in most jurisdictions have specific educational and certification requirements.
Designation
140. (1) Subject to any terms and conditions specified by the Minister, the Minister may
delegate to any qualified person or class of persons any of the powers, duties or
functions the Minister is authorized to exercise or perform for the purposes of this Part.
There is a difference between delegation of enforcement and delegation of a subject matter. Subsection
140(2) is an example of “delegation of enforcement”. This is not uncommon in Canadian federal-
provincial relations. In many places in Canada provincial conservation officers will enforce the federal
Fisheries Act, or provincial transportation officers will enforce the TDGA. These matters can change
relatively quickly (usually due to funding disputes), but it has been the case that inspection of uranium
mines in northern Saskatchewan has been delegated to Saskatchewan provincial inspectors. It is more
problematic to delegate a subject matter so that it falls under the laws of another constitutional
jurisdiction. For example, conventional occupational safety in Ontario nuclear power plants is done under
delegation to the provincial OHS statute, while nuclear safety issues remain federal.
Agreements — delegating provincial employees

140(2) Subject to subsection (3), the Minister may, with the approval of the Governor in
Council, enter into an agreement with any province or any provincial body specifying the
terms and conditions under which the Minister may delegate to a person employed by
that province or provincial body the powers, duties or functions that the Minister is
authorized to exercise or perform for the purposes of this Part.
In other Canadian jurisdictions, this “certificate of authority” might be called something else, such as a
“certificate of appointment”. While meant to ensure that industrial spies will not pose as government
inspectors, one can only assume industrial spies will forge convincing certificates of authority or
appointment.
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Certificate of authority
140(4) The Minister may provide any person to whom powers, duties or functions have
been delegated under subsection (1), or under an agreement entered into under
subsection (2), with a certificate of authority and, when exercising those powers or
performing those duties or functions, that person shall show the certificate to any person
who asks to see it.
The following subsections are fairly typical of “limitation of liability” provisions in OHS legislation across
Canada. The purpose is to ensure that a government officer or inspector is not intimidated by threats of
legal action every time he or she makes a decision. The key word in such provisions is “good faith” or
“bona fides”. This means that the inspector or officer can be negligent and still not be liable. The inspector
will be liable if he or she is using his or her statutory powers for a personal purpose and not a purpose of
the statute – ie, “bad faith” or “mala fides”. An inspector who issues an order or direction shutting down a
noisy workplace next to his home so he can get to sleep at night could be personally sued for the
business’s lost revenue while shut down – that would be a “bad faith” exercise of authority. Note that
there is the possibility that one could sue the employer, the Crown, even where the inspector or officer
couldn’t be sued. This lawsuit would likely be based on the “vicarious liability” of the employer. Again, this
is common in provincial regulatory statutes.
Limitation of liability
140(5) A person to whom powers, duties or functions have been delegated under
subsection (1), or under an agreement entered into under subsection (2), is not
personally liable for anything done or omitted to be done by them in good faith in the
actual or purported exercise of those powers or performance of those duties or functions.
Duty of Her Majesty

140(6) Despite subsection (5), and for greater certainty, Her Majesty in right of Canada is
not relieved of any civil liability to which Her Majesty in right of Canada may otherwise be
subject.
The powers of federal officers under the Code, section 141, are typical of the lists of powers of inspectors
set out in provincial OHS statutes. The CRSP should be familiar with this list.
141. (1) Subject to section 143.2, the Minister may, in carrying out the Minister’s duties and at any
reasonable time, enter any work place controlled by an employer and, in respect of any work
place, may
(a) conduct examinations, tests, inquiries, investigations and inspections or direct the employer to
conduct them;
(b) take or remove for analysis, samples of any material or substance or any biological, chemical
or physical agent;
(c) be accompanied or assisted by any person and bring any equipment that the Minister deems
necessary to carry out the Minister’s duties;
(d) take or remove, for testing, material or equipment if there is no reasonable alternative to doing
so;
(e) take photographs and make sketches;

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(f) direct the employer to ensure that any place or thing specified by the Minister not be disturbed
for a reasonable period pending an examination, test, inquiry, investigation or inspection in
relation to the place or thing;
(g) direct any person not to disturb any place or thing specified by the Minister for a reasonable
period pending an examination, test, inquiry, investigation or inspection in relation to the place or
thing;
(h) direct the employer to produce documents and information relating to the health and safety of
the employer’s employees or the safety of the work place and to permit the Minister to examine
and make copies of or take extracts from those documents and that information;
(i) direct the employer or an employee to make or provide statements, in the form and manner
that the Minister may specify, respecting working conditions and material and equipment that
affect the health or safety of employees;
(j) direct the employer or an employee or a person designated by either of them to accompany
the Minister while the Minister is in the work place; and
(k) meet with any person in private or, at the request of the person, in the presence of the
person’s legal counsel or union representative.
Most OHS statutes will have specific provisions for investigating serious accidents such as fatalities.
Section 141(4) is mandatory. As the federal regulator has jurisdiction over cross-border trucking,
subsection 141(5) is not a surprise, and may be the practice of many OHS inspectors. Normally people
are reporting to the government when there is a fatality, but notice how, in s.141(6), the Minister has 10
days to report back to the workplace his or her investigation findings.
Investigation of deaths
(4) The Minister shall investigate every death of an employee that occurred in the work
place or while the employee was working, or that was the result of an injury that occurred
in the work place or while the employee was working.
Investigation of motor vehicle accidents

(5) If the death results from a motor vehicle accident on a public road, as part of the
investigation the Minister shall obtain a copy of any police report as soon as possible
after the accident.
Report
(6) Within 10 days after completing a written report on the findings of an inquiry or
investigation, the Minister shall provide the employer and the work place committee or
the health and safety representative with a copy of the report.
Given our IRS philosophy, we would expect that an OHS statute will physically bring the worker reps –
the “internal auditors” – into close proximity with the inspectors or officers – the “external auditors”.
Section 141.1 below is common for Canadian jurisdictions. While the sections are silent, the expectation
is that the worker rep will be a “window in the IRS” for the officer/inspector.
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141.1 (1) If the Minister conducts an inspection of the work place at the work place, it
shall be done in the presence of
(a) an employee member and an employer member of the work place committee; or
(b) the health and safety representative and a person designated by the employer.
Inspection not to be delayed

(2) The Minister may proceed with an inspection in the absence of any person mentioned
in subsection (1) if that person chooses not to be present.
The terminology varies among jurisdictions. Federally, “orders” are called “directions”. Under some
regimes they are called “citations”. An order or direction is not a “charge” being laid; one is not
automatically going to trial with a potential fine. They are a lower rung on the enforcement stair-steps.
There are two main types of orders or directions – a “compliance order” and a “stop work order”. A
compliance order is also called a “contravention order”. A “stop work order” may be called a “danger
order”. In some environmental regimes, the analogous orders might be called “control orders” and “stop
orders”. A compliance order is when there is a regulatory infraction but there is little risk involved – a
technical violation in many cases. The workplace can be “brought into compliance” without stopping the
work. If the inspector or officer sees a danger in addition to, or beyond the regulations, and the activity
must stop, then a “stop work” order or direction is issued. An order or direction can be given orally or in
writing, but if orally, the statutes usually require that it be reduced to writing if it hasn’t been complied with
by the time the inspector/officer leaves the site. This is partly because it would be difficult to enforce or
appeal an unwritten order. Orders and directions may also be called “forthwith” or “time for compliance”
orders. One would expect an oral order would also be a forthwith order.
A “time for compliance order” sets a deadline by which time the recipient of the order must bring
themselves into compliance. The OHS professional who is present when the inspector or officer is writing
up an order should be sensitive to the deadline going into an order; the Inspector doesn’t necessarily
know how much time is needed to solve certain problems. From the inspector’s perspective, the deadline
in a time for compliance order gives a bright line test for contravention. If the compliance work isn’t
completed by the deadline, there’s a breach of an order. Otherwise, the Inspector has to listen to a lot of
whining about how “we’re almost done”, “it’s taking longer than we thought”, “the parts haven’t arrived
yet”, “can’t get anyone in to fix it”, etc, etc.
The breach of an order or a direction is an offence, and at that point charges could be laid. Note that no
regime provides that an officer or Inspector must first give an order or direction. In a serious situation, the
inspector or officer will be laying charges, not necessarily issuing orders.
Direction to terminate contravention

145. (1) If the Minister is of the opinion that a provision of this Part is being contravened
or has recently been contravened, the Minister may direct the employer or employee
concerned, or both, to
(a) terminate the contravention within the time that the officer may specify; and
(b) take steps, as specified by the officer and within the time that the officer may specify,
to ensure that the contravention does not continue or re-occur.
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Confirmation in writing
(1.1) If the Minister has issued a direction orally, the Minister shall provide a written
version of it
(a) before the officer leaves the work place, if the officer was in the work place when the
direction was issued; or
(b) as soon as possible by mail, or by facsimile or other electronic means, in any other
case.
Dangerous situations? — direction to employer

(2) If the Minister considers that the use or operation of a machine or thing, a condition in
a place or the performance of an activity constitutes a danger to an employee while at
work,
(a) the Minister shall notify the employer of the danger and issue directions in writing to
the employer directing the employer, immediately or within the period that the Minister
specifies, to take measures to
(i) correct the hazard or condition or alter the activity that constitutes the danger, or
(ii) protect any person from the danger; and
(b) the Minister may, if the Minister considers that the danger or the hazard, condition or
activity that constitutes the danger cannot otherwise be corrected, altered or protected
against immediately, issue a direction in writing to the employer directing that the place,
machine, thing or activity in respect of which the direction is issued not be used, operated
or performed, as the case may be, until the Minister’s directions are complied with, but
nothing in this paragraph prevents the doing of anything necessary for the proper
compliance with the direction.
Dangerous situations? — direction to employee

(2.1) If the Minister considers that the use or operation of a machine or thing by an
employee, a condition in a place or the performance of an activity by an employee
constitutes a danger to the employee or to another employee, the Minister shall, in
addition to the directions issued under paragraph (2)(a), issue a direction in writing to the
employee to discontinue the use, operation or activity or cease to work in that place until
the employer has complied with the directions issued under that paragraph.
Posting notice of danger

(3) If the Minister issues a direction under paragraph (2)(a), the Minister shall affix or
cause to be affixed to or near the place, machine or thing in respect of which the direction
is issued, or in the area in which the activity in respect of which the direction is issued is
performed, a notice of danger in the form and containing the information that the Minister
may specify, and no person shall remove the notice unless authorized to do so by the
Minister.
Cessation of use
(4) If the Minister issues a direction under paragraph (2)(b) in respect of a place,
machine, thing or activity, the employer shall cause the use of the place, the use or
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operation of the machine or thing or the performance of the activity to be discontinued,

and no person shall use or operate the machine or thing, work in that place or perform
the activity until the measures directed by the Minister have been taken.
Copies of directions and reports

(5) If the Minister issues a direction in writing under subsection (1) or (2) or makes a
report in writing to an employer on any matter under this Part, the employer shall without
delay
(a) cause a copy or copies of the direction or report to be posted in a conspicuous place
accessible to every employee;
(b) give a copy of the direction or report to the policy committee and a copy to the work
place committee or the health and safety representative.
Copy to person who made complaint

(6) If the Minister issues a direction under subsection (1), (2) or (2.1) or makes a report
referred to in subsection (5) in respect of an investigation made by the Minister following
a complaint, the Minister shall immediately provide a copy of the direction or report to
each person, if any, whose complaint led to the investigation.
Copy to employer
(7) If the Minister issues a direction to an employee under subsection (1) or (2.1), the
Minister shall immediately provide a copy of the direction to the employee’s employer.
Response to direction or report

(8) If the Minister issues a direction under subsection (1), (2) or (2.1) or makes a report
referred to in subsection (5), the Minister may require the employer or the employee to
whom the direction is issued or to whom the report relates to respond in writing to the
direction or report, within the time that the Minister may specify. The employer or
employee shall provide a copy of the response to the policy committee and a copy to the
work place committee or the health and safety representative.
Appeals of Decisions and Directions

The appeal of an inspector’s or officer’s order or direction may go to a labour relations board or to some
other designated officer. Under the Code, the appeal of the Minister’s direction (ODML’s direction) goes
an appeals officer, appointed by the Minister:
Appointment
145.1 (1) The Minister may designate as an appeals officer for the purposes of this Part
any person who is qualified to perform the duties of such an officer.
Status
(2) For the purposes of sections 146 to 146.5, an appeals officer has all of the powers,
duties and functions of the Minister under this Part, except for those referred to in
subsection (1), section 130, subsections 135(3), 137.1(1) to (2.1), and (7) to (9), 137.2(4),
138(1) to (2) and (4) to (6), 140(1), (2) and (4), 144(1) and 149(1), sections 152 and 155
and subsections 156.1(1), 157(3) and 159(2).
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All affected workplace parties can appeal the Minister’s direction and that the direction is not stayed or
stopped because of the appeal – it is still in effect during the appeal process. One has to make a special
and initial argument to the appeals officer to suspend the operation of the direction during the appeal.
Appeal of direction
146. (1) An employer, employee or trade union that feels aggrieved by a direction issued
by the Minister under this Part may appeal the direction in writing to an appeals officer
within 30 days after the date of the direction being issued or confirmed in writing.
Direction not stayed

(2) Unless otherwise ordered by an appeals officer on application by the employer,
employee or trade union, an appeal of a direction does not operate as a stay of the
direction.
The appeals officer can modify, erase or confirm the Minister’s original direction, or can substitute his or
her own direction:
146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals
officer shall, in a summary way and without delay, inquire into the circumstances of the
decision or direction, as the case may be, and the reasons for it and may
(a) vary, rescind or confirm the decision or direction; and
(b) issue any direction that the appeals officer considers appropriate under subsection
145(2) or (2.1).
The written decisions of the appeals officer can provide a good record of interpretation of provisions of the
Code and CRSPs in the federal sector will want to review them periodically:
Decision and reasons

146.1(2) The appeals officer shall provide a written decision, with reasons, and a copy of
any direction to the employer, employee or trade union concerned, and the employer
shall, without delay, give a copy of it to the work place committee or health and safety
representative.
The appeals officer is a “quasi-judicial” entity just like the people on the numerous Boards and Tribunals
of an administrative law nature. That is, the appeals officer has, by statute, some of the powers of a full
judge.
Powers
146.2 For the purposes of a proceeding under subsection 146.1(1), an appeals officer
may
(a) summon and enforce the attendance of witnesses and compel them to
give oral or written evidence under oath and to produce any documents
and things that the officer considers necessary to decide the matter;
(b) administer oaths and solemn affirmations;
(c) receive and accept any evidence and information on oath, affidavit or
otherwise that the officer sees fit, whether or not admissible in a court of
law;
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(d) examine records and make inquiries as the officer considers necessary;
(e) adjourn or postpone the proceeding from time to time;
(f) abridge or extend the time for instituting the proceeding or for doing any
act, filing any document or presenting any evidence;
(g) make a party to the proceeding, at any stage of the proceeding, any
person who, or any group that, in the officer's opinion has substantially
the same interest as one of the parties and could be affected by the
decision;
(h) determine the procedure to be followed, but the officer shall give an
opportunity to the parties to present evidence and make submissions to
the officer, and shall consider the information relating to the matter;
(i) decide any matter without holding an oral hearing; and
(j) order the use of a means of telecommunication that permits the parties
and the officer to communicate with each other simultaneously.
Section 146.3 can be called a “finality clause” and section 146.4 can be called a “privative clause”, as
they are meant to cut off access to the courts – no judicial review:
Decision final
146.3 An appeals officer's decision is final and shall not be questioned or reviewed in any
court.
No review by certiorari, etc.

146.4 No order may be made, process entered or proceeding taken in any court, whether
by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question,
review, prohibit or restrain an appeals officer in any proceeding under this Part.
In reality, a decision of a federal appeals officer can be appealed to the Federal Court of Canada. From
there it could be appealed to the Federal Court of Appeal. From there it could be appealed to the
Supreme Court of Canada. It is common for regulatory regimes with administrative boards, tribunals or
individuals who are adjudicators to have such finality or privative clauses. The rationale for them is that
decision-makers in such regulatory regimes are experts or specialists in the subject matter of the
regulatory regime. Judges in courts are generalists. In an appeal to a court, the administrative decision-
maker’s decision will be given “deference”, but only about the specialized subject matter. The court will
only determine if the administrative decision-maker’s decision is “reasonable” with regard to specialized
matters. However, if the administrative decision-maker has interpreted the law, the court will hold the
administrative decision-maker to a higher level – that of “correctness”. Only the courts have constitutional
jurisdiction to make authoritative interpretations of the law. In passing it is noted that many government
Ministries and Departments of Labour will publish guidelines to help interpret their OHS legislation. These
are very helpful in anticipating how the government officials will behave but in the end they are not
authoritative interpretations of the law.
In the federal jurisdiction, appeals officers work within an administrative entity called the Occupational
Health and Safety Tribunal of Canada (OHSTC). The OHSTC is not mentioned in the Code. It organizes
the appeal hearings and provides administrative support to federal appeals officers. In the provinces, the
appeals entity is often a labour relations board established under labour relations legislation and not OHS
legislation. The powers of such boards will be found in the labour relations legislation. Administrative
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decision-makers usually have the power to establish their own policies and procedures, which can usually
be found on the board or tribunal website.
When an order or direction is appealed to an administrative board, tribunal or official the hearing is
usually of a de novo nature. This means the appeals adjudicator can examine evidence that the original
officer or inspector did not consider. It also means that the hearing is more “inquisitorial” than
“adversarial” – the appeals adjudicator is more active than a judge.
Control of the Accident Scene

The provisions of section 127 of the Code are fairly typical of most Canadian jurisdictions. Contaminating
the scene of an accident such that the investigating inspector or officer cannot get a true picture of what
happened is treated very seriously. The scene of the accident can only be disturbed for the listed
reasons. One should very careful of any reason other than saving lives. “Convenience” or “saving money”
won’t be looked on favourably.
Interference at accident scene prohibited

127. (1) Subject to subsection (2), if an employee is killed or seriously injured in a work
place, no person shall, unless authorized to do so by the Minister, remove or in any way
interfere with or disturb any wreckage, article or thing related to the incident except to the
extent necessary to
(a) save a life, prevent injury or relieve human suffering in the vicinity;
(b) maintain an essential public service; or
(c) prevent unnecessary damage to or loss of property.
Exception
(2) No authorization referred to in subsection (1) is required where an employee is killed
or seriously injured by an accident or incident involving
(a) an aircraft, a vessel, rolling stock or a pipeline, if the accident or incident is being
investigated under the Aeronautics Act, the Canada Shipping Act, 2001 or the Canadian
Transportation Accident Investigation and Safety Board Act; or
(b) a motor vehicle on a public highway.
The CRSP will also be aware that dialling “emergency” will almost always bring the police and that they
will be staying longer and asking more questions about “knowledge of high risk” than in the past – due to
the high profile Bill C-45 brought to criminal negligence. In most jurisdictions, the police are the agents for
the coroner, and the coroner, under provincial coroners legislation (sometimes called fatal inquiries
legislation), will also have similar control of the accident scene.
Duties Regarding Inspectors/Officers

The following provisions are typical of what is found in most jurisdictions in Canada:
 a duty to assist the inspector/officer

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 no obstruction of the inspector/officer

 no lying to the inspector/officer
 duty to provide information to the inspector/officer
 no interference with workers speaking to the inspector/officer
Duty to assist
142. The person in charge of a work place and every person employed at, or in
connection with, a work place shall give all reasonable assistance to
(a) every appeals officer and the Minister to enable them to carry out their duties under
this Part; and
(b) every person to whom powers, duties or functions have been delegated under
subsection 140(1), or under an agreement entered into under subsection 140(2), who is
exercising those powers or performing those duties or functions.
Obstruction and false statements

143. No person shall obstruct or hinder, or make a false or misleading statement either
orally or in writing to
(a) an appeals officer or the Minister engaged in carrying out their duties under this Part;
or
(b) any person to whom powers, duties or functions have been delegated under
143.1 No person shall prevent an employee from providing information to
(a) an appeals officer or the Minister engaged in carrying out their duties under this Part;
or
(b) any person to whom powers, duties or functions have been delegated under
Residences
The general rule under almost all regulatory regimes in Canada is that a government inspector can only
enter a residence if the occupant consents or the Inspector has a warrant.
Permission required for access to residence

143.2 No person who carries out a duty under this Part shall enter a work place that is
situated in an employee’s residence without the employee’s permission.
Non-Compellability of Inspectors/Officers
Section 144 is similar to most jurisdictions. The inspector/officer will become aware of much confidential
information and will have formed an opinion about many activities going on in the workplace. No one,
unless the Minister agrees, can subpoena an inspector/officer to be a witness in a lawsuit:
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Evidence in civil or administrative proceedings precluded

144. (1) No person to whom powers, duties or functions have been delegated under
subsection 140(1), or under an agreement entered into under subsection 140(2), and no
person who has accompanied or assisted that person in exercising those powers or
performing those duties or functions may be required to give testimony in civil or
administrative proceedings, other than proceedings under this Part, with regard to
information obtained in exercising those powers or performing those duties or functions,
except with the written permission of the Minister, in which case subsection (5) does not
apply to restrict the disclosure of the information.
Evidence in civil or administrative proceedings precluded — Minister

(1.1) The Minister shall not be required to give testimony in civil or administrative
proceedings, other than proceedings under this Part, with regard to information obtained
in the exercise of powers or the performance of duties or functions the Minister is
authorized to exercise or perform under this Part, except for those powers, duties or
functions that shall not be the subject of an agreement entered into under subsection
140(2).
Appeals officer
(2) No appeals officer or person who has accompanied or assisted the officer in carrying
out the officer’s duties and functions under this Part may be required to give testimony in
any proceeding with regard to information obtained in the carrying out of those duties and
functions or in accompanying or assisting the officer.
Confidentiality
The duty to keep information confidential lies not only on the officer but also on a worker who might be
accompanying the officer. This sort of confidentiality provision is also common across Canada in
provincial OHS statutes:
Non-disclosure of information
(3) Subject to subsection (4), none of the Minister, an appeals officer who is admitted to a
work place under the powers conferred by section 141 and a person who is admitted to a
work place under the powers conferred by section 141 that are delegated to them under
subsection 140(1), or under an agreement entered into under subsection 140(2), and no
person accompanying them, shall disclose to any person any information obtained in the
work place by the Minister, officer or person with regard to any secret process or trade
secret, except for the purposes of this Part or as required by law.
Privileged information
(4) All information that, under the Hazardous Materials Information Review Act, an
employer is exempt from disclosing under this Act or the Hazardous Products Act and
that is obtained in a work place under section 141 is privileged and, notwithstanding the
Access to Information Act or any other Act or law, shall not be disclosed to any other
person except for the purposes of this Part.
Information not to be published

(5) No person shall, except for the purposes of this Part or for the purposes of a
prosecution under this Part or unless the Minister is satisfied that the publication or
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disclosure is in the interest of occupational health and safety or the public interest,
publish or disclose any information obtained as a result of activities carried out under
section 141.
Factors Minister may consider

(5.01) Situations in which the Minister may be so satisfied include, but are not limited to,
situations in which the publication or disclosure is for the purposes of a coroner’s inquiry,
the administration or enforcement of a federal or provincial law or the administration of a
foreign law or international agreement.
Personal information
(5.1) If the information referred to in subsection (5) is information within the meaning of
Part 4 of the Department of Employment and Social Development Act, the disclosure of
that information is governed by Part 4 of that Act.
Confidential communication
(6) No person to whom information obtained under section 141 is communicated in
confidence shall divulge the name of the informant to any person except for the purposes
of this Part, and no such person is competent or compellable to divulge the name of the
informant before any court or other tribunal.
Prosecutions
Most organizations and individuals respond to the advice, orders or directions of the government
enforcement agents. Now and again it is necessary for charges to be laid against corporations or
individuals. This is often connected, but need not be, to specific workplace disasters. In some jurisdictions
charges can be laid in a very informal manner though a ticketing procedure, much like getting a speeding
ticket. In all jurisdictions charges can lead to courtroom proceedings – a trial. The CRSP should be
familiar with the concepts and processes involved with prosecutions; before, during and after the trial.
There are several kinds of offences that can be prosecuted. In the famous case of Regina versus Sault
Ste. Marie, the Supreme Court of Canada set out three offences; two of them regulatory and one of them
a genuine chemical offence.
A true criminal offence under the Canada Criminal Code involves a mental element (mens rea) as part of
the offence itself (e.g. the Crown must show intent on the part of the defendant if murder is the offence).
The two regulatory offences are “strict liability offences” and “absolute liability offences”. The primary
difference between the two is that penalty for a strict liability offence is severe enough that the defendant
ought to have the opportunity to make a “due diligence defence”. A “strict liability offence” is not the same
thing as the cause of action in environmental law called “strict liability”. A due diligence defence is not
allowed for an absolute liability offence (a parking ticket would be the classic example).
The philosophy behind prosecuting for regulatory offences is different than for criminal offences. That
latter proceedings aim to punish for “wicked minds”; regulatory proceedings seek to deter substandard
behaviour. The CRSP should understand the subtleties of “deterrence” as a concept, as it helps to
explain the nuances of “enforcement policies” as well as the judge’s sentencing principles.
Some aspects of due diligence were introduced earlier (the Duties). Long before an accident occurs and
the enforcement agents are involved, we need to be able to anticipate what would amount to due
diligence for a specific duty. Reading and interpreting the prosecution case law is a skill that the CRSP
should develop in order to proactively advise what due diligence in certain situations might be. If an
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accident has occurred and a prosecution is imminent, then the CRSP may be working closely with legal
counsel to pull together the evidence for pre-accident due diligence (or post-accident due diligence if the
aim is to merely reduce sentence).
If the issues surrounding prosecutions for OHS offences are understood, then one will also be familiar
with the same issues when other statutory regimes are being enforced (environment, public health, public
safety, traffic safety). Environmental due diligence follows the same analysis as OHS due diligence,
although the specific due diligence actions taken will be different in most (but not all) cases.
Due diligence is not the only legal defence available for regulatory offences. The defence of reasonable
mistake of fact, and the defence of “officially induced error” should also be understood (the latter is not
very common).
Due diligence for officers and directors, as well as the organization as a whole, involves the development
and implementation of an OHS management system. The details of such are covered in the BCRSP
domain for Management Systems (MS).
Prosecution Procedure
In a prosecution, a document, usually called an “information”, will set out the specific offences the
defendant has allegedly committed. Each “count”, or specified offence will have a few statements, the
“particulars”, that give details so the defendant will know the when, the where and the what underlies the
alleged offence. If the offence has to do with moving parts being unguarded, it is fair if the defendant
knows which machine out of perhaps hundreds in the workplace the prosecution is referring to. The
formal reading of the offences the defendant is charged with committing is the “arraignment”. The
defendant pleads “guilty” or “not guilty”. Guilty leads to sentencing, skipping a trial. Not guilty leads to a
trial. “Plea bargaining” is when the prosecutor and the defendant have, before the hearing, agreed that
the defendant will plead guilty to one or more offences and the prosecution will withdraw the other
charges.
Our court system is called “adversarial” rather than “inquisitorial” because the judge is relatively passive
and relies on the conflict between self-interested parties to get the best evidence and the most relevant
law. In other countries, in an inquisitorial style of court, a judge will have investigators who may obtain
evidence other than what the parties bring to court.
The adversarial style explains why we have:
1. The prosecutor’s or plaintiff’s witnesses go first with the object of putting that party’s best
evidence before the judge. A “friendly witness” will be “examined in chief” by the first party, going
through a series of questions and answers that have been prepared in advance. The first party
cannot ask “leading questions”, describes a situation at length and then asks the witness “is that
true, yes or no”. The questions have to be open-ended so that witness tells the story in his or her
own words.
2. The witness is then turned over to the defendant who will “cross-examine” the witness. The
purpose of cross-examination is to undermine the credibility of the witness and attack the truth,
relevancy or weight of the evidence. Cross-examination questions can be leading questions for
which a “yes” or “no” answer is sought.
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3. The defence goes through the same proof of examination in chief of the defence witnesses, with
the prosecutor or plaintiff doing their best, through cross-examination, to attack the first party’s
evidence.
4. The judge observes the best efforts of both parties to show that they are right and the best efforts
of the parties to show that the other side is wrong. Through this adversarial process the judge will
be best situated to get as close to what actually happened as can be (given the court system’s
resources).
If the prosecution has not done a particularly good job with its case, having not brought the judge to
where the judge is no longer having any reasonable doubt about the prosecutor’s case, the defendant
may make a “motion for acquittal”. The judge then decides if the judge needs to hear the defendant’s
case. The defendant is innocent until proven guilty. If the prosecution hasn’t managed to “get the iron in
the fire”, then there’s no need for the defendant to raise any doubts about the prosecutor’s case; the
judge already has some reasonable doubts. The judge would acquit the defendant without hearing a
defence. Otherwise the trial goes on and the defendant has the onus or burden of proving its defence.
The defendant does not have the same standard of proof as the prosecutor (proof beyond a reasonable
doubt). It is a less standard. The defence proves its defence on the “balance of probabilities”, which is
“more likely than not”, raising doubts in the mind of the judge, and pulling the iron back out of the fire.
After the parties have summed up their cases the judge gives a verdict “guilty” or “not guilty” for each of
the offences alleged. If guilty, the parties proceed to “speaking to sentence”, which is a kind of “mini trial”.
The parties can bring in witnesses and evidence that supports each party’s arguments as to what the
sentence should be. Evidence that was inadmissible at trial, such as the defendant’s prior offence record,
is now allowed in.
For regulatory prosecutions, the main purpose of the “penalty”, the fine and/or jail sentence, is primarily
“deterrence” rather than punishment for its own sake. The judge should be asking “what’s the minimum
amount of pain I should inflict on the guilty defendant so that they change their behaviour to a higher level
of conduct in the future?”
There are many factors the judge will consider:
1. past offences
2. size of the defendant (if a corporation)
3. knowledge
4. attitude
5. level of risk involved.
Judges consider the deterrent effect of fines before considering a jail sentence. A first time offender might
get a fine at the low end of the allowable range of fines. A repeat offender would see fines towards or at
the maximum fine. On relatively rare occurrences, for regulatory prosecutions, the judge will conclude that
the defendant wouldn’t be deterred by a fine alone, and a jail sentence is necessary for deterrence. The
fines can add up. If the maximum fine is $200,000, then the total amount for three or four offences could
be much higher than the $200,000.

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deterrence general deterrence specific deterrence

offence absolute liability offences strict liability offences
trial prosecutor cross examination
subpoena Crown attorney witness
under oath perjury examination in chief
burden of proof testimony corroboration
hearsay leading question refreshing memory
defence standard of proof beyond a reasonable doubt
balance of probabilities due diligence reasonable mistake of fact
officially induced error charge count
offence notice conclusion of fact conclusion of law
circumstantial evidence evidence exhibit
ex parte expert evidence expert witness
justice of the peace peace officer solemn affirmation
limitation period summary conviction indictment
venue lay information service of document
affidavit of service prosecution penalty
sentencing solicitor client privilege convict
acquit summons plead
guilty parties to offence particulars
plea bargain search warrant quash
presumption of innocence
Canada Labour Code, Part II – Offences and Punishment

The Canada Labour Code, Part II penalty provisions are not typical of a provincial OHS Acts’ provisions
because the federal government can use the criminal procedures involving “indictable offences” and
“summary offences”. Provinces do not use an indictment process for their regulatory offences. While
murder would never be prosecuted by way of a summary process, for many offences, the prosecutors
have a choice. They have been given a choice under the Canada Labour Code, Part II, which is a
regulatory statute rather than a true criminal law statute like the Criminal Code of Canada. If by way of
indictment, there will be a preliminary hearing (like a Grand Jury US TV) and there will likely be a jury for
the trial. A summary process is more informal and wouldn’t have such “safeguards” for the defendant.
A “person” could be a corporation – many provincial OHS statutes distinguish between penalties for
individuals and for corporations. The maximum fines for corporations are usually higher than for
individuals on the deterrence theory that corporations are larger economic units than individuals and need
bigger fines to deter them. That is not always so.
General offence
148. (1) Subject to this section, every person who contravenes a provision of this Part is
guilty of an offence and liable
(a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment

for a term of not more than two years, or to both; or
(b) on summary conviction, to a fine of not more than $100,000.
If death or injury
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(2) Every person who contravenes a provision of this Part the direct result of which is the
death of, serious illness of or serious injury to an employee is guilty of an offence and
liable

(b) on summary conviction, to a fine of not more than $1,000,000.
Risk of death or injury
(3) Every person who wilfully contravenes a provision of this Part knowing that the
contravention is likely to cause the death of, serious illness of or serious injury to an
employee is guilty of an offence and liable

(b) on summary conviction, to a fine of not more than $1,000,000.
Subsection (4) below purports to set out where a due diligence defence is available and by implication
where it isn’t. Many provinces have similar provisions. They are rather dubious since the Charter has
been said to give defendants the right to make a due diligence defence if they could go to jail.
Defence
(4) On a prosecution of a person for a contravention of any provision of this Part, except
paragraphs 125(1)(c), (z.10) and (z.11), it is a defence for the person to prove that the
person exercised due care and diligence to avoid the contravention. However, no person
is liable to imprisonment on conviction for an offence under any of paragraphs 125(1)(c),
(z.10) and (z.11).
One is not too sure what to make of section 149. In the provinces the prosecutors are not directly
responsible to the Minister of the Ministry they might be located in. This allows a non-political process for
prosecutions. The Minister of ESDC is a politician.
Minister’s consent required

149. (1) No proceeding in respect of an offence under this Part may be instituted except
with the consent of the Minister or a person designated by the Minister.
Canada Labour Code – Prosecutions, Misc

A “limitation period” is the amount of time someone has to take legal action before they are prohibited
from doing so. Section 149 is very typical of a limitation period for prosecutions in a Canadian OHS Act.
Nova Scotia has a two year limitation period (it was increased after the Westray disaster).
Limitation period
149(4) Proceedings in respect of an offence under this Part may be instituted at any time
within but not later than two years after the day on which the subject-matter of the
proceedings arose.
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“Venue” means the location of the trial. Sometimes there are disputes about venue based on
convenience and sometimes, in the case of jury trials, where the local population may be inflamed, on the
basis of justice.
Venue
150. A complaint or information in respect of an offence under this Part may be heard,
tried and determined by a provincial court judge or justice if the accused is resident or
carrying on business within the territorial jurisdiction of the provincial court judge or
justice, notwithstanding that the matter of the complaint or information did not arise in that
territorial jurisdiction.
Section 152 allows for an application for a judge’s order and is typical of similar types of provisions in
provincial regulatory statutes. They are very important because they are anticipatory of the use of force
by police and jail sentences. The police will likely be there to enforce a judge’s order to stop the work.
Outside of Nova Scotia, OHS inspectors are not likely to be “peace officers” and they have to rely on the
police for the use of force. Defiance of a judge’s order is likely to result in a jail sentence. Many of the
people who have gone to jail for violation of environmental laws in Canada have actually gone to jail
because they breached a judge’s order to comply with an environmental statute. Can you find an
equivalent provision buried in your provincial OHS Act?
Injunction proceedings
152. The Minister may apply or cause an application to be made to a judge of a superior
court for an order enjoining any person from contravening a provision of this Part,
whether or not a prosecution has been instituted for an offence under this Part, or
enjoining any person from continuing any act or default for which the person was
convicted of an offence under this Part.
Injunction
153. The judge of a court to whom an application under section 152 is made may, in the
judge’s discretion, make the order applied for under that section and the order may be
entered and enforced in the same manner as any other order or judgment of that court.
Evidence
Evidence is what is used to try to prove or disprove a factual issue in a hearing. It does not include
argument itself. The “law of evidence” consists primarily of the rules which determine whether evidence is
relevant and therefore admissible. Some rules omit evidence because it was obtained unfairly. There are
several types of evidence: oral testimony, documents and “things”. Oral testimony is key, since a witness
is needed to identify and put in context documents and things. Ordinary witnesses cannot give opinions
(except about rather mundane things). An expert witness can give an opinion based on specific facts (but
cannot usurp the role of the adjudicator by pronouncing on the final decision the adjudicator must make).
The law of evidence comes from statutes and the common law.
In general, the “best evidence” is desired. That is why “hearsay evidence” is not allowed when following
strict rules of evidence as in a prosecution. It is “hearsay” if a witness says what someone else told the
witness if the point is to show what someone said is true. The second hand evidence cannot be the
subject of cross-examination to the same degree as if the original person who spoke the words was in
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court. It’s not hearsay if the witness is saying what someone else said just for the issue of whether that
someone said it, but not for the purpose of showing that what was said is true.
If an OHS inspector/officer, as a witness says that someone in the workplace threatened him by saying he
had a gun, repeating that statement in court is admissible to show the inspector was threatened but would
be hearsay and inadmissible if the point was to prove there was in fact a gun present. Hearsay is still
hearsay even if it’s in a document such as an investigative report.
Hearings in front of administrative boards and tribunals do not follow the strict rules of evidence followed
in prosecutions. Hearsay is often allowed but is given less “weight” than non-hearsay testimony. Many
boards and tribunals will have their own procedures, including some evidentiary practices, published on
their web sites.
The law of evidence controls:
1. what evidence is admissible

2. who can be compelled to testify
3. the manner in which questions can be asked
4. how physical or “real” evidence is to be used
5. the burdens of proof at various stages
6. what “presumptions” about the value of evidence apply, and
7. whether “corroboration” is needed for some types of evidence.
It is commonly advised that the CRSP should ensure that everything OHS-related is documented. It is
important to understand, though, that documentation is not due diligence on its own. It is evidence of due
diligence. A document must still be introduced in court through a witness. It does not stand alone. It can
be a two-edged sword if documentation says what will be done rather than what was done. If you don’t do
what your documents say you will do, then you’ve shot yourself in the foot.
Competency LE8: Obligations of a CRSP

Obligations to Employers and Co-workers
The CRSP should understand the nature of ethical obligations of the CRSP to employers and co-workers.
It is necessary to first identify particular scenarios where the CRSP would be alerted to the need for
ethical analysis. In what ways could the CRSP act, or fail to act, that would jeopardize the interests of
employers and co-workers? Once a “problem” is identified, then the values in the BCRSP’s Code can be
considered and the strategies for resolving ethical dilemmas can be applied.
The CRSP has duties to the employer and duties to co-workers. A situation could arise where either or
both are relevant. The CRSP’s duties to the employer and to co-workers can be in conflict. There are
many variations in possible scenarios depending on whether we view the “employer” to include “the
client” in a consulting relationship with the CRSP. The CRSP could be employed as a government
regulator or inspector and the circumstances could raise ethical problems not encountered in other
workplaces.
Regarding the employer, the CRSP’s most basic obligation is to be able to do what he or she was hired to
do. The express BCRSP’s Code values would include:
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 Truth re qualifications. Does the CRSP really have the background and experience the employer
was asking for?
 Is the CRSP capable of exercising sound judgement?
 Can the CRSP do the job: protecting people, property, and the environment?
 Does the CRSP recognize his or her own level (and areas) of competence?
Many of the issues come up when OHS professionals are seeking employment, particularly when seeking
to move up to a more responsible (and better paying) position. They arise when a CRSP is marketing his
or her skills as a consultant.
It should be noted that legal issues out-weigh the ethical issues in some cases. An employee who has
mis-represented his or her qualifications can be fired for cause. A CRSP who has mis-led a client in a
consulting relationship can be sued. The issues arise when a CRSP is moving laterally or upwards within
his or her own organization.
The CRSP’s express obligation to continue his or her professional development can be seen as an
obligation to the employer. To maintain competency for the employer’s sake, the CRSP should engage in
professional development.
The CRSP owes the employer a duty of confidentiality. There may be a confidentiality clause in the
CRSP’s employment or consulting contract. In which case there are legal issues as well as ethical issues.
One can distinguish between confidentiality over:

 OHS information
 medical information of individuals, and
 non-OHS information (trade secrets, confidential business information, etc.)
One should also distinguish between a breach of confidentiality involving:

 co-workers
 the government inspector
 the employer’s competitors
 the public at large
When we considered the supply of OHS information to co-workers there can be a legal context in terms of
the worker’s right to know. Does the CRSP actually have an ethical duty not to breach the employer’s
confidence when it comes to informing the employees when the OHS legislation may state that there are,
in effect, no secrets about OHS? The legal “duty to tell” workers can eliminate the ethical question of
confidentiality.
When it comes to a breach of confidentiality about non-OHS information of a “trade secret” nature to the
employer’s competitors then the illegality of the breach may also render an ethical question moot.
Confidentiality problems can sometimes be described as “whistle blowing” problems. There is whistle-
blowing internal to the organization and whistle-blowing involving recipients external to the organization
such as the media or the government inspector. When should the CRSP engage in either kind of whistle-
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blowing, and when would there be a clash between the duty to protect people, property and the
environment and the duty to keep confidences? There are several points to be made:
 the CRSP will have a legal duty to answer an inspector’s questions when the inspector is
exercising his or her ordinary warrant-less powers to inspect; to do otherwise might count as the
offence of “obstruction”.
 internal whistle-blowing depends on risk and on whether the normal channels for resolving
problems are “broken”.
 whether the CRSP should take initiative and whistle-blow externally depends on risk and on the
state of the organization’s IRS.
Regarding obligations to co-workers, the obligation to be competent doesn’t have the same legal
implications as the question of being competent when hired or engaged... the CRSP’s co-workers didn’t
hire the CRSP and don’t have the same expectation interest as the employer. Given the IRS philosophy,
the OHS professional is not directly responsible for OHS, so workers’ reliance on the OHS professional is
not as strong as the reliance one would have on a doctor or lawyer. Nevertheless, there is normally a
reliance on the expertise of the CRSP by co-workers and so there is an ethical obligation of competency
towards co-workers.
The CRSP’s ethical obligations towards co-workers in the area of confidentiality are usually about the co-
worker’s health information, which is subject to legal protection in any event. The co-worker does not
have the same trade secret interests as the employer. The IRS includes a worker’s right to participate
through a representative, which is understood to be the health and safety representative or worker
committee member. The rationale is that in some circumstances a worker’s concerns should be
championed by someone other than the worker. The existence of a representative means a worker can
remain anonymous and still have a concern addressed. This is particularly important where personal
relationships or labour relations have gone bad. The CRSP can stand in the same position as the worker
representative. If a worker comes to the CRSP with a concern, and the worker does not wish to be
identified, does the CRSP have an ethical obligation to keep the worker’s identity confidential? In most
cases the answer would be “yes” and the rationale would be the harm done to the IRS’s effectiveness if
such confidences were not kept. Many workers would not raise their concerns with the OHS professional
if they knew they could not do so in confidence. This would allow risk to rise.
Scenario. You are an employee of a large company. The VP of HR asked you to do an OHS perception
survey. It involved interviewing hundreds of employees at all levels and administering questionnaires to
everyone. You have produced a big, data packed report. It reveals weaknesses about ownership of OHS,
communication and trust issues, leadership problems, and so on. It is not a technical report about the
company’s hazards and controls; it’s about the human element in OHS. You’ve found many problems of a
management nature, partly personnel issues, partly problems of policy, process and training. These
problems no doubt indirectly affect risk, but there is nothing in the report about direct risks.
Your VP isn’t happy with the report as it reveals some weakness on his part. There are certain other
individuals and groups who will be very unhappy with the report. While doing the interviews and
administering the questionnaires people asked if the report would be available when completed and you
said “yes” because the VP, who was present the first time the question was asked, had nodded
agreement at the question. Now the VP has asked you not to deliver hard copies to anyone. He is in
receipt of your report digitally. He says he will distribute a synopsis of your report to various people in the
company but not the whole report “because it is too big and complicated”. He is vague on when he will be
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doing this and evades the question of whether he will send you an advance draft of the synopsis. The
union rep calls you directly and asks for a copy of the report. You decline to send the union rep a copy at
this time. He ends the call by saying “you promised”.
What should you do if anything? Are there any legal issues that should be separated from ethical issues?
Who should you consult? Who should you go to? If there is nothing in the report about hazards directly,
do you have a duty to warn that over-rides (ethically) your duty to the employees? Is your promise to the
respondents binding? Are there any creative options?
Suppose that one of your questions asked if the respondent had knowledge of any serious, life
threatening hazards, with room to write in details. There was thus a key chapter in the report that listed
and classified the hazard comments. You expedited the report largely because of these comments and in
fact called the VP to mention several of them while writing the report (you received no feedback from the
VP on these calls). Does this make a difference how you should proceed? Is the value situation changed
from “promise keeping” to “protecting human life”? Is whistle blowing within and without the company an
option? Does the union rep now have a right to know aside from promise keeping?
Obligations to the Public

The CRSP should understand the ethical obligations of the CRSP to the public.
It is in the very nature of a profession that its members should act to further the interests of the public. But
“the public” is an abstraction. What particular types of people could be part of “the public”? The following
groups could be subsets of “the public”:
 visitors
 families of workers
 regulators
 the media
 public enquiries
 the public at large
 workers of other employers
Then we ask, in what way could the OHS professional act or fail to act that would potentially harm each
type of “public”? It is obvious that the CRSP will have a dramatically different effect on the families of
workers than on the public at large. Once certain problems or scenarios can be identified where the
interests of members of the public are at stake, then we can apply our ethical values and our ethical
analysis
Who is “the public”? When it is said that doctors, nurses, architects and engineers owe a duty to protect
the public, the “public” in mind is often the potential patient or client. The analogous “public” in OHS would
then be the people in the workplace. But we have already categorized the workplace parties as “the
employer and co-workers” and have dealt with them elsewhere. If here “public” consists of people outside
the workplace, then what can we say of the CRSP’s ethical obligations?
How is OHS viewed by society or members of the public at large? Is OHS law like contract law, where
there is little public interest in the content of contracts (which is why contract law is in the realm of “private
law”)? OHS legislation is “public law”. The Supreme Court of Canada has said OHS legislation is “public
welfare” legislation. That is, society at large has an interest in whether risks in the workplace are
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controlled. Almost everyone will be a worker at some point in their lives. More importantly, everyone has
an interest in OHS because everyone has family members or close friends who are workers. The CRSP,
then, should view his or her ethical obligations to extend to the public at large because of this wide-
spread interest of the public in OHS.
The CRSP’s obligations to the public arise in a second way – which can be seen quite clearly when taking
a “loss control” perspective. Review the accident theories and models covered in the accident theory topic
in the Management Systems (MS) domain, and see how losses to the public can flow from workplace
accidents. The BCRSP has always considered “public safety” to be part of the scope of practice of the
CRSP. An example is the CRSP’s involvement in occupiers’ liability – protection of the public as entrants
into the workplace. The CRSP is concerned with the organization’s environmental impacts to the extent
that the CRSP assists the organization with reducing the risk of spills, discharges, leaks, fires and
explosions – all of which can do direct or indirect harm to neighbours through the environment – the
CRSP in engaged in protecting the public at large.
For these two reasons we can say that the CRSP has ethical obligations to society to be competent, to
use sound judgement in protection of people, property, and the environment.
The BCRSP’s Code refers to the obligations of the CRSP to respect the rights of others in the broad
sense of non-discrimination. Human rights, like OHS, are a matter of broad societal concern. The CRSP
would have legal obligations under Human Rights Codes to avoid discrimination in the workplace. The
BCRSP’s Code takes things to a higher level – the CRSP would adopt the spirit of Human Rights Codes
into decision-making beyond legal compliance.
Does the CRSP have an ethical obligation to be engaged outside the workplace? The professional is not
simply living up to the terms of an employment or consulting contract. There is a concern for the public
good in the life of a professional that goes beyond “the job”. The professional is a good citizen. When
there is an appropriate moment in public discourse when issues arise that the CRSP has expertise in, the
CRSP should consider speaking up. Examples are letters to the editor, being interviewed on radio or
television, adding commentary to a blog or internet chat group, writing to an elected official, agreeing to
speak to a community group, being a member of a task force or committee, and so on.
If CRSPs do not speak up on OHS issues in the public square, one can be sure that others – likely less
competent – will fill the vacuum and the results may be harmful. The prestige of good public service
rebounds to the profession and the enhancement of the OHS profession will lead to greater consultation
and involvement in the future – for the betterment of society.
Has there been a decline in civic-mindedness over the years? Do we do less for our community and
profession than our parents did? We claim to have busier and more hectic lives. We undoubtedly do. Yet,
consider again what we owe future generations. We should give at least to the extent that those before us
gave to the community and the profession. A good expression is to “pass on our professional heritage
with interest”.
Warning the public or the regulators may be considered to be “whistle blowing”. There is much literature
on whistle blowing and there is something about a whistle blower that inspires stories and movies.
Whistle blowing should be a last resort when internal processes have failed. What we can say here is
that, without using the term, the BCRSP’s Code implicitly anticipates that the CRSP will sometimes be
forced to be a whistle blower.
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The BCRSP’s Code does not have an express “duty to warn”. However, it is an important step in ethical
reasoning to be clear about the affected parties or stakeholders. There may be a number of categories of
persons to whom the CRSP may owe a duty to warn. In some cases the “public” may subdivide into other
identifiable groups. Further reflection will clarify the scope and content of the duty to warn for each type of
recipient. When and how you warn employees may be different than when and how you warn regulators
or the general public.
There are many circumstances when a CRSP may be called upon to make public statements. The CRSP
has a professional obligation to be honest, objective and to stay within the bounds of the CRSP’s areas of
expertise. The CRSP could be a regulator or work for an activist group or be an educator giving a
presentation at a conference. In many cases the CRSP will face the media as the company’s
spokesperson when things have not gone well. Then again, this standard can also apply to the CRSP
when engaged in “whistle blowing”. Where facts are not known and are being assumed, the assumptions
should be made clear in the CRSP’s comments. If the CRSP does not have personal competence in the
subject matter but is referring to the opinion of a more specialized expert, that reference must be made
clear.
It is helpful to review the difference between descriptive language (the language of science and facts) and
the language of prescription (the language of value, priority, emphasis, “should” and “ought”). It is not to
say that the CRSP should never say anything prescriptive in the public square, but many problems with
objectivity arise when we unknowingly mix in prescription with what should be just description.
Obligations to Fellow Professionals
The CRSP should understand the ethical obligations to fellow professionals.
By fellow professionals we mean initially other CRSPs. There are also issues that arise between CRSPs
and other types of OHS professionals (e.g. CIHs) and other professionals in general, such as engineers
and lawyers. Our main focus is on fellow CRSPs. We will examine obligations to the profession as a
whole and to individual CRSPs.
Once again, our first question is what are the kinds of problems that arise between OHS professionals?
What are common ethical dilemmas that arise between fellow CRSPs? What obligations does a CRSP
have to his or her profession in the abstract? Are there circumstances where obligations to fellow
professionals and obligations to the public might be in conflict?
By “fellow professionals” we mean first of all, fellow CRSPs. We can distinguish between ethical
obligations to:
 fellow CRSPs as individuals
 fellow CRSPs as a whole; the BCRSP
Different problems arise. The behaviour of a fellow CRSP can jeopardize the reputation of the BCRSP.
One may owe a greater obligation to the profession (loyalty to the profession) than to an individual. On
the other hand, “professional courtesy” means something in terms of obligations to fellow individual
CRSPs but is not very meaningful in terms of obligations to the profession in the abstract.
By “fellow professionals” we also mean members of other OHS professional groups, such as:
 occupational hygienists
 ergonomists
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 occupational health nurses
We also mean:
 doctors
 nurses
 engineers
 architects
 lawyers
There is a distinction between a legally protected profession which has the sanction of prohibition of
practice and a profession whose main sanction is exclusion from the group. It would be quite natural for
members of a legally protected profession to take a narrow view of “profession” and not view CRSPs,
CIHs, CSPs and ROHs as fellow professionals. Whether they do or not as individuals, we can say that
CRSPs should treat non-OHS professionals as “professionals” in terms of “professional courtesy”. Ethical
obligations do not have to be reciprocal. Professional courtesy means, among other things, that
professionals should treat each other with respect, value others’ time in terms of scheduling and
appointments, extend trust and assistance and give one another the benefit of the doubt.
Focusing on fellow CRSPs, the ethical obligation to be competent would apply in circumstances where a
CRSP is retained or subcontracted by another CRSP. The ethical obligations would be above and beyond
the legal contractual obligations.
Otherwise, competency is related to the general obligation to uphold the honour and prestige of the
profession. An incompetent CRSP will bring the BCRSP and fellow CRSPs into disrepute – a sullying of
reputation by association. (Peoples’ perceptions don’t have to be fair to be taken into account.) It is in the
interests of all CRSPs that individual CRSPs recognize their own levels and areas of competence. It is
also in the interests of all CRSPs that fellow CRSPs continue in their own professional development. The
BCRSP expressly mentions assisting others in their professional development. Altogether, this means
that a CRSP has an obligation to assist other CRSPs in many ways; the list is open-ended. There is a
broad duty to help the OHS profession by sharing knowledge and skills. Being active in professional
safety and health groups is important – sitting on committees, assisting with conferences, being a mentor,
providing workshops, drafting policy, and so on.
It might be in CRSP X’s personal interest that no one else in town obtains a certain expertise that CRSP
X possesses – it would be bad for business. Should CRSP X assist CRSP Y if the latter asks for advice
and assistance in developing expertise in CRSP X’s area? In general, the answer should be “yes”. But
keep in mind that CRSP Y should consider whether the local market can bear two competitors in CRSP
X’s area of expertise. No one in town will be served if X and Y both go out of business. The deciding
factor should be what is in the interests of the public, not what is in the personal interests of the CRSP.
It is fair to say that CRSPs have an interest in each other’s performance across the board. A CRSP who:
 engages in publicized conflicts of interest
 is deceptive about his or her qualifications
 handles data dishonestly when on joint ventures
 breaches the confidentiality of his or her employer or client
 engages in discriminatory behaviour in the human rights sense
 etc.
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…will bring the reputation of the designation “CRSP” into doubt in the public’s view.
There are issues that involve harm to fellow CRSPs as individuals:

 violation of other’s intellectual property rights
 failure to give credit for other’s contributions
 denigrating the ability/integrity of a fellow CRSP in order to win clients
 otherwise “poaching clients”
 not being forthcoming with needed information
A professional is required to be co-operative, respectful, supportive, helpful, open-minded as well as

open, and without blatant or crude competition. Competition is good, but it must be meritocratic and
honest. And it is of the essence of professionalism that discipline is maintained. Competition can induce
the OHS professional to recommend cheaper but less effective measures in order to win further contracts
away from colleagues. The OHS profession’s objectives – protection of people, property and the
environment – will be better met if CRSPs professionals share their expertise with each other.
Scenario. An OHS professional is working for a senior OHS professional. The senior guy has sent out a
report to top management about hazard X, stating that the risk involved is negligible. The junior person
has access to the original data and can see that the senior guy’s conclusions do not match the data.
Moreover, the data doesn’t look right. It may have been arbitrarily “adjusted” or “smoothed”. Some critical
information in the raw data is simply unaddressed in the final report. The junior person was hired by the
senior person, who has always been a great boss and a good mentor. He has stood up for the junior
person during some battles involving office politics. The junior person feels very loyal to the senior
person. The senior person has the authority to terminate the junior person’s employment or to give him a
raise in pay and responsibility. What should the junior person do?
Which standards of professional conduct in the BCRSP’s Code has the senior OHS professional likely
breached? What effect does the level of risk of hazard X have on what the junior person should do? Does
the junior person have the facts totally clear? If he is wrong on the facts and acts anyway, can he do more
damage than if he does nothing at all? Does his loyalty and his obligation to ensure that OHS advice is
always based on sound data both point to taking action by first raising his concerns with the senior
person? Would it be wrong to “whistle blow” without having discussed the data problem with the senior
person?
Assume the risk, as far as the junior person can make out, is actually critical, and the senior person is out
of the country and hard to reach. Does the junior person have a professional duty to warn those exposed
to hazard X directly?
Assume the junior person raises the issue with the senior person and the latter responds badly. He
denies angrily that the data have been tampered with or ignored, but does not go through the data
showing the junior person how the data was handled. He expresses disappointment with the junior
person’s loyalty and tells him he is “on probation”. He says the junior person’s discretion (silence) is going
to be the test for further employment. Assume the risk is critical. How should the junior person proceed
now? At this point, the question of whistle blowing might be considered. It is never a first resort. One has
to distinguish between “internal whistle blowing” (ensuring that other more senior persons are alerted to
the problem) and “external whistle blowing” (the internal processes have failed and the external regulator
or media should be contacted). While we lack information about the corporate structure, ethical climate
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and policies for this sort of issue, what might the junior person consider doing internal to the company? Is
there a way to get the senior person to “see the light”? Should the junior person do what he can to alert
the people directly affected by the hazard?
Scenario. You are a CRSP and have a consulting practice. You have submitted a report to a potential
client to do some OHS training. Your contact person with the client tells you they would like to engage
you, but she wants to discuss a few issues. At your meeting, she hands you a detailed proposal from a
competing OHS professional. The proposal has attached the training materials your competitor is
proposing to use. A quick glance tells you the materials are excellent. Your contact asks you to take away
the materials and review them and to incorporate any good points into your own training materials. Your
contact says “don’t copy them of course, just use them for inspiration”. You hesitate and she says they
have several consultants in mind, who “are all about the same” in terms of cost. She says the competitor
with the materials she is offering you was four times as expensive as anyone else and “obviously doesn’t
really want the business, which is a shame”. She adds, “we do this all the time, to help contractors
improve – it’s a quality thing”. What will you say?
Is this really a hard ethical dilemma? Your choice is between trying to get the job without taking the
materials, or making sure you have collected your own set before you leave her office. Your remaining
issue might be whether to alert your competitor – a fellow CRSP – of this unauthorized and unethical use
of his materials.
But wait! You are desperate. It’s a big contract – a year’s worth of training. Your creditors are hounding
you and nothing else is in sight. Your family is at home waiting with bated breath. People are counting on
you to get this contract. Tiny Tim will get his medicine! (You can make your personal pressures as
dreadful as you like.) Do your own personal interests have any bearing on whether it’s right to use your
competitor’s materials? Do you see that your family interests are your interests? Do they count? They
might count for a utilitarian, but is there any rule a rule utilitarian could propose that would have positive
consequences all around if adopted? Is there any Kantian universal maxim that all could adopt? Would
you want to carry on business in a world where everyone did what your contact is suggesting?
How would this look on CNN? How would it look if discussed publicly by your peers at the next OHS
conference? What effect does it have on the profession if its members act the way the contact person is
suggesting? Can you imagine how an old respected CRSP you know would respond?
Does it make any difference if you know the competitor and you’re pretty sure he would use your
materials if positions were reversed? Is your behaviour contingent on what his behaviour would be or is it
independent? Suppose the competitor has cheated you in the past and now is your chance for some
“justice”? Is that what commutative justice requires?
Does it make any difference if your contact person tells you the competitor handed out his materials to
participants at a conference workshop last month? The materials are “in the public domain” she says. At
this point do you believe her? Consultants sometimes share material on the basis that others not use it in
competition. Can you tell her you will contact the competitor and ask him if it’s OK? (You’d have to explain
the context to him.) Is there anyone else you’d like to talk to in her company? Can you think of a creative
way to defuse this situation?
Scenario. You are a CRSP and you attend a seminar at a safety conference on a new “professional
designation” that has been developed. A senior safety professional with several professional
certifications, including a CRSP, has created an “Institute” and a new safety credential, the “SSSSP”. He
describes the point system by which this credential can be earned. None of the points are for academic
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achievement in OHS or OHS related fields. Some points are for “experience”, but seem to be based
merely on number of years working. Most of the points are for taking a series of courses the Institute is
offering. The courses are very expensive. Only these courses count for points. The proponent then goes
on to compare the SSSSP with other existing safety designation such as the CRSP. He says at one point
they have or will have the same status. He launches into an attack on the CRSP and some other
designations. He says he will be marketing the SSSSP aggressively to employers and hands out a flyer
that he says will be faxed and emailed to hundreds of thousands of employers. The flyer says the SSSSP
is a prestigious and respected safety designation that is equal to or superior to the CRSP and some other
named designations. You notice that the people most interested in the SSSSP, who approach the
speaker after the presentation, are young and inexperienced and who do not, you figure, have a
professional designation like the CRSP.
What should you do? You know that you personally should not bring the OHS profession into disrepute.
Do CRSPs have a duty to take action in such circumstances – where a fellow professional seems to be
dishonouring the designation? While there may be some legal issues surrounding defamation, what is the
main ethical issue? Who should you talk to?
Conflicts of Interest
The CRSP should understand the principles and obligations relating to conflict of interest.
There are different types of conflict of interest, and some are more serious than others. Sometimes there
are conflicts between values or persons’ interests that will require a painful weighing and choosing – not
all good things and interests can be maximized simultaneously. If you are clear about your ethical
priorities and resolve the conflict all is well. These sorts of scenarios should be considered “ethical
dilemmas” rather than true conflict of interest cases.
One type of conflict of interest problem is where you owe duties to more than one party and the duties are
in conflict. This is not a conflict between personal interests and the employer’s or client’s interest and it’s
not a conflict between the values or interests of one person – it’s a conflict between the interests of others
(plural).
The classic conflict of interest scenario is where a personal interest is obscuring a professional interest.
You hire an OHS consultant to assist your company because he or she is a golfing buddy, not because
he or she is competent. If your buddy is reasonably competent, but not the best choice, then your
employer has been short-changed but the level of risk may not have been compromised greatly (or at
least measurably). If your buddy is actually incompetent then the harm done is risk related.
A serious conflict of interest is where there is a high risk situation and one’s personal interests seemingly
prevent one from warning others or taking action.
There are conflicts of interest that are illegal rather than just unethical. Receiving a “kickback” or a “secret
commission” is a criminal offence. From the Criminal Code of Canada:
Secret commissions
426. (1) Every one commits an offence who
(a) directly or indirectly, corruptly gives, offers or agrees to give or offer

to an agent or to anyone for the benefit of the agent — or, being an
agent, directly or indirectly, corruptly demands, accepts or offers or
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agrees to accept from any person, for themselves or another person —

any reward, advantage or benefit of any kind as consideration for doing
or not doing, or for having done or not done, any act relating to the affairs
or business of the agent’s principal, or for showing or not showing favour
or disfavour to any person with relation to the affairs or business of the
agent’s principal; or
(b) with intent to deceive a principal, gives to an agent of that principal, or,
being an agent, uses with intent to deceive his principal, a receipt, an
account or other writing
(i) in which the principal has an interest,

(ii) that contains any statement that is false or erroneous
or defective in any material particular, and
(iii) that is intended to mislead the principal.
Privity to offence
(2) Every one commits an offence who is knowingly privy to the commission of an
offence under subsection (1).
Punishment
(3) A person who commits an offence under this section is guilty of an indictable
offence and liable to imprisonment for a term not exceeding five years.
Definition of “agent” and “principal”

(4) In this section, “agent” includes an employee, and “principal” includes an
employer. R.S., 1985, c. C-46, s. 426; R.S., 1985, c. 27 (1st Supp.), s. 56; 2007,
c. 13, s. 7.
Scenario. You’re working with a partner. The two of you do technical safety assessments for companies
for a specific type of hazard. There are many potentially adequate control devices that a company could
purchase if you determine a problem exists. Your partner, who is a little stronger than you on the
technical aspects, always recommends a product from a particular supplier. You trust your partner’s
judgement. The two of you have had many clients over the past several years who have purchased the
product on your joint recommendation (you both sign the report). Now your partner has revealed that he
has been receiving a benefit from the supplier of the product as a commission. He says he’s been
struggling with his conscience and he’s come to the conclusion that it’s only fair to split the commission
with you. He hands you a cheque for “this year’s work”. A quick glance reveals it’s a hefty sum. Should
you take it? Should you end your relationship with your partner? Should you say anything to all your past
clients?
Is the main issue here really an ethical one? Or is it a legal one? In most jurisdictions what your partner
has been doing would be called an illegal secret commission or a kickback. Aren’t your real problems now
trying to ensure you don’t get accused as a party to the crime?
Assuming you are ending your relationship, what is your ethical duty to your clients? Suppose there is no
economic cost to them of having bought this product. It was a little cheaper anyway. It may be impossible
for you to rectify the situation by rebating anything to the customers. If the product was more expensive,
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is the excess something you should return? But in terms of corrective justice, the wrong-doer should pay,
not you. If your ex-partner won’t rebate to the clients, should you? There may be some potential legal
liability on your part solely as a partner.
Does it make any difference if you have been receiving some complaints from clients that the product is
inadequate, posing some risk to their employees? Perhaps a failure of the product will cause an
environmental disaster. Do you now have a clear duty to warn? Should you send a “hazard notice” to all
your clients? Should you also tell them about your partner’s infidelity? Again, this may revert to a legal
case with you and your clients seeking redress from your ex-partner.
Rationalizations
It is often easier to understand conflict of interest cases by examining the rationalizations people offer
themselves (and sometimes others) for doing what should be obviously short of the standards we want to
live up to. We may have worked out the correct ethical response, but fail to act on it. The three main
barriers are:
1. Self-interest
2. Obedience to authority, and
3. Conformity to the group
The most important one is usually self-interest, which is why we are examining “rationalizations” . The
way these usually work is through self-deception and rationalization. They are particularly powerful if they
act simultaneously.
A major pitfall for the CRSP when thinking through an ethical problem is the peculiar human tendency to
self-deceive. This is particularly important when the CRSP is under the sorts of influences listed above.
Virtually no one will claim to be an unethical person. Even the most egregious of errors will tend to be
self-justified. Just as studies show that almost everyone believes they are an above average driver (a
factual impossibility), almost everyone believes they are honest, fair and compassionate. Researchers
have shown that virtually everyone deviates from the truth many times during the day (“Honey you look
great”), but few will admit to being a habitual liar. Psychologists refer to “cognitive dissonance”, the
discomfort people feel when faced with inconsistencies between beliefs and actions; so people explain
away or rationalize their inconsistencies to feel better about themselves.
It helps immensely to be aware of the main types of rationalizations and to be sensitive to when one’s
thoughts or language are proceeding along those pathways. Some common examples:
 “Everyone else is doing it.”

If you have children, you’d be tempted to say “well, if everyone jumped off a cliff ...”. More
seriously, this rationalization captures the power of peer pressure, which is recognized to be a
major barrier to doing what you know you should do. If this pops into your mind, try checking with
a larger circle of peers. It may be just your organization. Take some comfort that courts have
condemned virtually everyone in an industry or occupation in a given area as not living up to an
objective standard of care.
 “No one will ever know.”

Law and Ethics (LE)
Surprising how wrong this statement often turns out to be. You can use the “CNN test” to
determine how you’d feel if certain audiences did know. Nevertheless, it must be repeated that an
ethical duty is only that if it is done for its own sake, not out of fear that others will learn of its
absence. On this rationalization a well-planned murder would be justified.
 “It’s legal so it’s OK.”

It won’t be legal for much longer if too many people use this rationalization. We have already
noted that ethics extends far beyond law. Ethics is most critical when it tells us what to do when
there are no legal rules.
 “It’s a novel issue, so there are no rules.”

If you came across a novel hazard for which there were no specific regulatory rules, would you
ignore the hazard, or would simply have to work harder to apply a more general legal principle
regarding reasonable care? By analogy, a solid ethical foundation should enable you to deal with
ethical novelty.
 “If I don’t do this, someone else (a competitor) will.”

Then your competitor will be behaving unethically. This is a form of peer pressure and also an
economic pressure. We shouldn’t downplay the seriousness of these pressures. It’s not a true
ethical dilemma as it’s a clash between what’s ethically right and what is economically beneficial.
They used to say that safety didn’t sell in car design in the 1960s. It does today. If ethical
performance doesn’t pay today it likely will soon, the way things are going. Who would have
imagined “ethical mutual funds” 40 years ago?
 “The senior people expect this even though they won’t say it.”
They probably aren’t saying it because they don’t believe it. Many people crassly assume that
senior people fit a money-obsessed caricature. Senior people are as diverse and as multi-
motivated as any other group of individuals. For every Enron executive there are a 1,000 who are
appalled. If you know the statement above to be absolutely true (as opposed to just something
you want to believe), then you’re working for the wrong organization.
 “I have to do this because of my family.”

This is a hard one. There is no doubt that one’s family consists of individuals that you have duties
towards. They must be considered under most ethical theories. Yet, perhaps wrongly, utilitarian
calculations count family members’ happiness as the same per individual as any stranger’s. A
Kantian would ask what kind of a world it would be if people made decisions in the workplace
primarily on the basis of their families. It might not be a universalizable rule. But most important of
all, check that this idea isn’t really masquerading for economic self-interest.
 “I’m only following orders.”

This old chestnut didn’t go far as a defence at Nuremberg, as we all know. A moral agent has free
will. You can choose. This is a particularly weak rationalization for a professional because it is
part of the essence of professionalism that a professional is not just following a superior’s orders
– one can exercise discretion and judgement.
Law and Ethics (LE)
 “In this culture, these practices are normal.”

This can be a hard one to tackle in some places on this planet. One response is that you’ll be
judged in your own culture if things go wrong. World class companies do not (contrary to myth)
shed all their environmental and safety and health standards when operating in other countries.
They, instead, tend to raise the standards in their new locations. You may also find that while
corruption may be common, it is not in fact held to be desirable by local people.
 “They would do this to me if they were in my shoes.”

You might call this the “Reverse Golden Rule”. “Be as bad to others as they would be to me.”
Well, here’s your chance to educate and be an example to others. Evolutionary psychologists
have shown how altruism can evolve through “tit for tat’ reciprocal processes. But now that we’re
all evolved moral creatures we are bound by our moral natures to know that we should behave
properly even if others don’t. It’s one of the hardest lessons to get across in moral education –
you should do the right thing because it’s right, not because others are behaving in certain ways.
 “It’s in the public domain anyways, or it should be.”

This rationalization is encountered when other’s intellectual property is being used illicitly.
It’s a legal issue, but because the legal remedies are weak, it is also an ethical issue.
Something may be available in the public square (i.e. the internet), but that doesn’t mean
it’s free to use or that its origin shouldn’t be cited. A reality check is needed here – who
are you to say it should be in the public domain? That is likely a self-serving belief.
 “I could have found this out legitimately if I tried.”

This rationalization may apply when in receipt of another’s confidential business information. But
are you sure you could have? But even if true, so what? It may be wrong to use it even if you
could have obtained it legitimately.
 “Anyone would succumb to these pressures I’m facing.”

Do the pressures amount to a legal defence of duress? We can be very forgiving of someone
who behaves badly at the point of a gun. But short of that type of scenario, you are a free moral
agent. Anyway, is it true? There are many tough people out there – tough and stubborn. Ask
around. You may be surprised.
 “It’s not up to me to make these kinds of decisions.”

Once again, it is part of the professional’s job to make difficult decisions involving ethical
issues. What professional is a strictly technical person, unauthorized to exercise his or
her moral judgement (we may be slandering strictly technical people here)? If you had to
describe your job to friends and relatives, would you describe it this way – “I have no
autonomy or discretion”? Doubt it.
 “Only a troublemaker or professional grandstander would make an issue out of this.”

Law and Ethics (LE)
Convincing oneself of social ostracism in advance? Is this just a form of conformity to the
group? No doubt some whistleblowers suffer socially from their behavior. Whistleblowing
is a course of action that needs careful consideration. The issue may not be very
important – the statement may be correct, in a sense. But are you downgrading the
issue’s importance in order to dismiss it?
 “All this is fine, but the bottom line is money; that’s all people care about in the end.”
You’re not really like that, are you? Why think the worst of other people? People care
about ethics – they’re designed that way. You can help them.
Competency LE9: The CRSP’s Obligations with Respect to the BCRSP’s Rule of
Professional Conduct (Code of Ethics)
The CRSP should understand the BCRSP’s Code. In this Competency, we engage in an in-depth
analysis of the values and principles in the BCRSP’s Code, express or implied. A quick list appears
below:
 sound judgement
 integrity
 maintain professional competence
 honour and prestige of profession
 protect/promote people, property, environment
 avoid conflicts of interest
 objectivity
 respect intellectual property of peers
 respect integrity and ability of peers
 recognize own level of competence
 continued professional development
 confidentiality
 truth re qualifications
 up-to-date re applicable law
 non-discrimination human rights
In subsequent Competencies we consider scenarios where the values or principles in the BCRSP’s Code
could be at issue. The effects of a breach of the Code are dealt with elsewhere.
BCRSP Rules of Professional Conduct (the Code)
The purpose of the Canadian Registered Safety Professional (CRSP)®/Professionnel en

sécurité agréé du Canada (PSAC)® Rules of Professional Conduct (the Code) is to
provide guidance to ensure that each CRSP®/PSAC® adheres to high standards of
integrity and professional competence.
Competence is “the ability to perform a task, function or role up to a set of prescribed
standards. ”
Law and Ethics (LE)
Preamble: As a condition to obtaining and maintaining certification, each CRSP®/

PSAC® commits to abide by the Code as adopted by the Board of Canadian Registered
Safety Professionals (BCRSP). Each CRSP®/PSAC® pledges to subscribe not only to
the letter but also to the spirit of the Code in all their professional activities.
“Adheres to high standards of integrity and professional competence” is broad and relatively open-ended.
It means that the list of ethical standards in the Code is not intended to be complete and encyclopedic.
This is a good thing. A major benefit of studying ethics is that understanding, clarity and practice will help
when faced with novel issues. So, when circumstances warrant it we can refer to values, principles, duties
and virtues that are not specifically mentioned elsewhere in the Code.
1. Competence
Certificants are required to:

a. Maintain competence in carrying out professional responsibilities
and provide services in an honest and diligent manner.
b. Provide sound judgement in pursuance of their professional duties.
c. Recognize their professional limitations and perform only those
services that may be handled competently based on one’s training and
experience.
d. Ensure persons working under their authority or supervision are
competent to carry out the tasks assigned to them.
“Competence” is a critical value because it is at the core of the rationale for the profession’s existence. If
most people possessed the knowledge and skills the professional “professed”, what would be the point of
the profession? By definition, a professional is held out as possessing knowledge and skill that take
special study and years of experience to acquire. It is important for the profession as an institution or
community that all its members are competent because incompetence detracts from the ability to protect
human life and health. As well, incompetence of a member detracts from the integrity, honour and
prestige of the profession, which in turn decreases the usefulness of the profession as a whole to assist in
protecting the public and others.
Does “competence” mean “best”? An individual CRSP doesn’t have to be the best (how could everyone
be above average?). The CRSP is held out to the public as having reached a minimum level of
competence. Both legally and ethically a CRSP has to offer such skill as any reasonable peer would.
Having said that, a CRSP has a duty to improve. “Competence” implies continuing education. One is not
deemed competent for life. If you sit still, advances in knowledge and technology in the profession will
leave you behind – you will become incompetent.
“Sound judgement” can refer to technical competency, but in the context (given that competency is dealt
with in another paragraph) it can mean decision-making when discretion must be exercised regarding the
weight of competing values. When working out an ethical solution to a problem, the CRSP should have
“balanced care” for the interests of the public, employers, clients, employees, colleagues and the
profession. We can see how important it is to take that step in ethical reasoning where one must clearly
identify the affected parties. The “interests” of others should be understood in a Kantian fashion – the
interests of others are to be understood as the others see them. Avoid a paternalistic analysis of interests.
To have sound judgement or “balanced care” means to avoid extremes and to act with neutrality.
Extraneous features of the listed parties should be ignored. Personal interests that you might have with
any of the parties should be ignored. “Balanced care” does not mean necessarily that you should treat
Law and Ethics (LE)
everyone equally at all times. If a party’s interests are far more serious than another’s, then you should
act to protect the former’s interests over the latter’s. To “balance interests” means to “weigh them”, which
does not mean to measure them in a strictly scientific fashion.
2. Integrity

a. Maintain honesty, integrity, and objectivity in all professional activities.
b. Protect and promote the safety and health of people, property and the environment above
any consideration of self-interest.
c. Avoid circumstances where compromise of professional conduct or conflict of interest may
arise.
d. Represent their qualifications and experience accurately and not knowingly make false or
misleading statements.
“Integrity”. Many codes refer to “integrity” as a value – “maintain the highest standards of integrity”. It
seems vague at first. It’s sometimes confused with honesty. Integrity means a consistency in commitment
to moral commitments. Still vague? Commitment to commitments means one’s moral character must be
consistent, whole and integrated. If you were loyal one day and disloyal the next, you would lack
consistency and so lack integrity. You don’t have “integrity” if you are committed to conflicting standards
or values. Your behaviour would become erratic and inconsistent. The values you hold should fit together
much like the components of a building that has “integrity” fit together.
Integrity is related to other values, such as honesty. To be true to a system of values, one must be
honest. A person with integrity will admit errors, refrain from false pretences and advise clients truthfully.
Integrity is related to promise keeping – one must follow through on promises. A professional should be
careful about what is promised. If you can’t deliver on your promises, your integrity is said to be
jeopardized.
Integrity is also related to loyalty – loyalty to one’s profession, the goals of the profession, loyalty to the
employer’s goals. Loyalty should not be blind, however, and so other values may be in conflict with loyalty
if the employer’s goals are not in themselves worthy in the circumstances.
Objectivity. This value takes various forms in professional ethics. Ethics itself is objective in the sense
of having standards outside of individual subjectivity. Focusing on “objective decision-making” –
expressly or implicitly found in professional codes of ethics – means that a professional decision and
the reasoning behind it, would stand up to scrutiny by the reasonable peer. We are referring here to
factual, scientific type decision-making, not ethical decisions (which also have to be objective). There
should be no bias, there should be truthfulness and no conflict of interest. “Recognized scientific
methods” implies keeping up to date with developments. It also implies staying away from fads,
“fringe science” or “junk science”.
Safety (life) and health. Any moral theory will lead to human life and health as being a value (or
values). A Kantian perspective is the clearest on the value of the individual’s life. Natural law is clear
as well. A natural law perspective puts human life as one of the fundamental human goods that are
self-evident and that we have a right to. Protection of human life and health is the main part of the job
of a CRSP. As a value, human life and health would rank at the top of any list and in almost all cases
would trump other values.
Law and Ethics (LE)
The difficulty is that we by necessity engage in activities that create risk for human life and health.
Work is such an activity. Work cannot be risk-free. But risk can be driven down as low as it can
reasonably get in the circumstances. Conflicts arise when a small change in risk is in conflict with
another desired objective, such as economic gain.
Property. Protection of property is often denigrated as a value. It is unlikely to be found in classic

ethics texts. It compares poorly with human life as a value. However, the OHS professional has as a
value the protection of property. It is a duty that arises from the employer’s or client’s expectations
and the promises and loyalties of the OHS professional. The CRSP will often view protection of
property as “instrumental” – as a means to an end. Protecting property will often result in protection of
human life and health, incidentally. But often protection of property interests (profit, costs, assets,
intellectual property, trade secrets and so on) will clash with the protection of human life and health.
Whenever the clash involves serious risk to life and health there is no contest – people come first.
The CRSP’s skills with risk assessment will assist greatly in resolving these clashes.
Environment. The environment is sometimes a subset of “property”, but often it is the general
environment “out there” that must be protected. It is beyond the scope of this study guide to delve into
the various competing and often contradictory theories of environmental ethics. To protect the
environment “for its own sake” is actually problematic for classical moral theories, which are all about
people and not inanimate objects and non-human life-forms. It is helpful to characterize
environmental protection issues as protection of human interests in environmental integrity –
protecting the public’s health and safety from environmental hazards that are under the CRSP’s
influence
It is always helpful to ask oneself about a potential conflict of interest. The wording is interesting. It
doesn’t say avoid conflicts of interest. It says avoid them in the first place. It’s an important distinction.
A wise and prudent person will anticipate temptations and obstacles and will make it easier to do the
right thing. If you’re trying to lose weight, don’t agree to go to a restaurant with an open buffet.
Recognizing that human nature is weak and imperfect, the ethical obligation is to plan ahead to avoid
temptation.
Representations – qualifications and misleading statements. It is unethical to mis-describe your

abilities so as to mis-lead others. It is unethical to undertake work that you do not have the expertise
for. This statement can refer to falsifying or lying on your resume or c.v. or in your marketing
materials. More than one person has taken a one week summer course at Harvard and turned it into
“Harvard educated” on their resume. Blatant lying is hopefully rare. The real temptation is to inflate
things – it’s called “puffery” to use an old English law term. The standard goes beyond certifications to
descriptions of projects that you have worked on. Were you the “critical team member” on the project
that developed and implemented a new audit tool, or were you the junior member? Were you really
the “principal author,” of the report? Are you using managerial terminology to describe a technical
role, or vice versa? Much prestige can rub off on a person who name drops. Much prestige will
wrongly accrue to someone who lies about their past relationships. “No kidding! You were Herbert
Heinrich’s right hand man before going on to help Deming introduce quality to the Japanese? Wow!”
3. Respect in the Workplace

Law and Ethics (LE)
a. Support, promote and apply the principles of human rights, equity, dignity and respect in the
workplace.
b. Recognize that discrimination on the basis of race, creed, colour, language, national origin,
political or religious affiliation, sex, sexual orientation, age, marital status, family relationship
and disability is prohibited.
Most people these days are sufficiently sensitized to human rights that not much need be said about
this standard. Human rights have a pedigree leading back to Immanuel Kant. Treat others as ends in
themselves and never as a means solely. Treat others with respect, meaning that their interests
should be considered as they see them. Individuals are unique and should be judged on their own
merits and not pre-judged on the basis of the characteristics (real or imagined) of the group the
individual appears to be a member of. Personal biases should not enter into the provision of
professional services.
Given that the content of the above statement is most likely found in the law of most jurisdictions, it
would seem that complying with the law will ensure ethical conduct. It should be clear by now that
non-discrimination is only ethical if you actually believe that you have an ethical duty not to
discriminate and you are not discriminating because of that duty. To non-discriminate solely because
it’s illegal is not acting ethically. The practical difference is that you will likely be far more caring and
accommodating in addressing individual’s needs when proceeding from an ethical duty than from
legal compliance.
4. Professional Growth

a. Continue professional development throughout their career and support and encourage
fellow CRSPs/ PSACs to develop professionally.
There are two parts to this statement as well. The first part has to do with oneself and the second part
has to do with fellow CRSPs. One could be competent at the beginning of one’s career and then do
nothing to improve. Over time, one would become incompetent by failing to keep up. A professional
must engage in personal continuous improvement. This could include:
• attending OHS conferences

• taking commercially provided training courses
• taking college or university level courses covering new areas
• working with another OHS professional so as to learn new techniques
• learning by taking on the preparation of an OHS publication
• learning by taking on the development of an OHS course
This principle lies behind the BCRSP process of “maintenance points”. The CRSP would take this
process seriously. The statement also refers to a CRSP’s obligation to assist and encourage a fellow
CRSP to develop professionally. This could include:
• agreeing to contribute to OHS professional development conferences

• mentoring younger or newer certificate holders of the profession
• agreeing to teach an OHS course or part of an OHS course
• providing support for subordinates to attend OHS professional development courses.
Law and Ethics (LE)
5. Confidentiality

a. Protect the confidentiality of all professionally acquired information and disclose such
information only when properly authorized or when legally obligated to do so.
Confidentiality. Respecting confidences is another idea commonly expressed in professional codes of

ethics. A CRSP learns many things that are confidential by virtue of his or her work. Medical or health
information about individuals is a special case, and there are many legal duties regarding this issue.
In addition, however, there is confidential business information that cannot be divulged to others –
business plans, customers’ names, secret formulae, and so on. There is an ethical obligation to keep
confidences, but there are also provisions concerning confidentiality in many OHS Acts.
Sometimes forgotten is that personal use of the confidential information is also a breach of
confidence. Suppose that a CRSP comes into a company to perform a certain task, but discovers the
company has an excellent program, procedure or policy in some other safety and health area. The
consultant expropriates it for inclusion in services to other clients. Consent of the client would
legitimate this use, but remember that sometimes the desired material is not within the ability of the
client to give away – it may belong to a fellow OHS consultant. One annoying (and unethical) practice
of some clients is to reveal the consulting materials of one consultant to another. “You’ve won the
contract, but how about including these features of your competitor’s work into your services.” It is
unethical to go along with this practice; you are aiding in the breach of confidentiality by the client.
While keeping confidences is a duty, a problem arises when the CRSP is asked (or told) to keep
confident something that it is the CRSP’s duty to warn about.
6. Requirements
Certificants are required to

a. Keep apprised of all relevant laws, regulations and recognized standards of practice as it
relates to their professional duties.
There is a general ethical obligation to obey the law. “Keep apprised” means keeping up with
changes in the law. The law in question can mean two things. It can mean keeping up with OHS law
in general. In this sense the principle can be thought of as a subset of the broader obligations to be
competent and to engage in professional development. It can also mean keeping up with legal issues
that are about the concept of professional practice rather than the content of professional practice.
This would include issues about:
• intellectual property (copyright law)

• scope of practice of fellow professions
• civil liability for professional negligence
• liability insurance
7. Support of the Profession and Other Professionals

Law and Ethics (LE)
a. Uphold the honour and prestige of the profession.

b. Recognize and respect the original work, integrity and ability of their peers.
Advancing the “honour and prestige” of the OHS profession might sound rather self-interested. The
answer is that the CRSP will be adhering to a long list of ethical standards in order to advance the honour
and prestige of the OHS profession. But the honour and prestige of the OHS profession is not the end
point. The well-being of the OHS profession as an organization, an institution and as a community
ensures that individual OHS professionals in the future will be educated, guided and encouraged to
maintain high ethical standards and so continue to protect the public and the workplace parties.
The on-going promotion of these values means that as a community there is consistent application of
ethical standards from one professional to another and that the ethical standards maintained are
coherently integrated together. Regardless of which CRSP you ask to do the job you should know what
you’re getting in terms of a high level of ethical performance. Honour and prestige have more to do with
how the profession is perceived by others. To have earned honour and prestige means that the standards
have been kept up.
Many people in modern times find words such as “honour” to be old-fashioned. One could say that’s
simply too bad for modernity. Yet under virtue ethics it is vital to be able to ascertain what your
professional peers have determined over time to be the correct path to take with common ethical
problems. It is important to have role models and to have mentors to discuss issues with. It is important to
hear the life stories of high-performing professional colleagues so as to gain insight and encouragement.
The honour and prestige of a profession is a gift to the new certificate holder. The CRSP is then duty
bound to pass on a well-preserved, if not enhanced, reputation to the next generation of OHS
professionals.
“Recognizing ... the original work” of fellow OHS professionals means ethical behaviour such as:
• reference other peoples’ work

• keep peoples’ names on their work products
• don’t plagiarize the work of others
• don’t steal other peoples’ intellectual property
“Recognizing and respecting the integrity and ability” of fellow OHS professionals means such ethical
behaviour as:
• insinuate that others are less ethical than they are

• vouch for the integrity and ability of peers when appropriate
• do not unfairly criticize the work of others
• do not mis-describe the abilities of others
• making unfair comparisons
• giving others the benefit of the doubt
8. Support of the CRSP®/PSAC® Certification

a. Comply with the relevant provisions of the CRSP®/PSAC® bylaws, policies and certification
scheme.
Law and Ethics (LE)
b. Make claims regarding CRSP®/PSAC® certification only with respect to the scope for which
certification has been granted.
c. Not use the certification in such a manner as to bring the certification body into disrepute, and
not make any statement regarding the certification which the certification body may consider
misleading or unauthorized.
d. Discontinue the use of all claims to certification that contains any reference to the certification
body or certification upon suspension or withdrawal of certification, and to return any
certificates issued by the certification body.
e. Not use the certificate in a misleading manner.
f. Abstain from behaviour that will cause harm to the reputation of the BCRSP and its
certificants.
g. Maintain the security of the BCRSP examination information and materials, including the
prevention of unauthorized disclosures of test information.
In a sense the “CRSP” designation is a brand name and it should not be misused, abused or
devalued.
Accountability (Adherence)
Each certificant will rely on the BCRSP to protect the integrity of the CRSP®/PSAC®. The
Professional Conduct Committee (PCC) is tasked with ensuring that responsibility is fulfilled in a fair
and impartial manner. The PCC will be solely responsible for ensuring BCRSP Policy is followed to
investigate complaints or allegation of misconduct against certificants.
Complaints or allegations of misconduct against certificants found to be justified by the PCC will be
referred to the Discipline Committee for review.
The BCRSP may disclose any disciplinary or enforcement decision/action against a certificant along
with associated information, to other organizations including without limitation, organizations related
to health and safety, law enforcement agencies, and regulatory bodies.
Scenario: You have received permission to hire a new member of the OHS department. You have had a
round of interviews and you are down to a half dozen potential people. You meet with several members of
your OHS department to review the candidates. Everyone has reviewed the resumes and some people
were present at interviews. In the open discussion you all hear the following:
Candidate A: He has worked for a similar company and he says he can bring their detailed health and
safety management system documents, their safety procedures and their training materials.
Candidate B: She’s got good credentials and experience. She went to the same school as you years ago
and you’re acquaintances, and have many mutual acquaintances. This connection is unknown to the
others in the room. You had a couple of drinks with her after the interview and she told you how
desperate she is for the job, what with being a single mother with a rather low paying job right now. You
have a feeling you more or less promised her the job, or at least led her to believe you’d do all you could.
Candidate C: He is a member of a particular religion that you are uncomfortable with. His religion wasn’t
on his resume but he did raise the issue of his religion when he asked about time off for certain religious
holidays during his interview. Another person in the room was present and mentions this aspect of the
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candidate saying “we’ll all have to take up the slack for this guy if we hire him; he wants so many days off
for religious holidays”. Another member of your team says men of that religion treat women with
disrespect, and it would be impossible for her to work with him. If he’s hired, she’s going. She’s a great
member of the team and you certainly don’t want to do another round of hiring.
Candidate D: He is a relative of a senior manager of your company. He has said nothing about his
nephew directly to anyone in the OHS department. He has, however, had his nephew into the office three
times in the last month before going out to lunch, and has introduced his nephew around the office. The
senior manager is an important person for the OHS department’s successful operation.
Candidate E: Good academic credentials. Not a great deal of work experience. Wheel chair bound. The
duties of the job involve site visits where there is no wheel chair access.
This scenario is not a classic OHS professional problem; it is a scenario concerning a number of “human
resources” issues – the obligations of the OHS professional to respect human rights and to be fair when
making decisions about peoples’ interests. Just as a CRSP should aspire to high ethical conduct, so also
should the CRSP be looking for such aspirations in people he or she works for or with. Should you keep a
promise that was an improper promise to begin with? What does non-discrimination mean in this
scenario? If non-discrimination is a professional value, why should you hire someone who is intolerant?
The key point here is that non-discrimination means assessing a person on their own merits and not
according to what you perceive to be the characteristics of the group. No one knows if Candidate C is
actually disrespectful of women. For both Candidate C and E, there will likely be human rights legislation
in your jurisdiction that will provide a process that must be gone through, taking the problem out of the
realm of ethical decision-making to a large degree.
Summary. If your background is in science or engineering, as is the case for many OHS professionals,
you may find the contemplation of professional ethics to be somewhat frustrating. Keep in mind that
ethics, as a subject matter, is in a different realm than science, and its methods are not the same. Solving
problems in professional ethics can be very difficult. For all its difficulty, professional ethics for the OHS
professional is an important part of what it means to be a professional. An understanding of a Code of
Ethics, such as that of the BCRSP, is critical. Study, reflection and practice can help hone the OHS
professional’s skill in analyzing ethical problems faced at work. No Code of Ethics can hope to provide
detailed guidance for all cases that may arise, which is why it is important for OHS professionals to treat a
Code of Ethics as a starting point for their reflection. Many ethical problems can be avoided by taking
precautions in advance. There are many practical ways of ensuring that simple problems are identified
and separated from the more complex. Genuine ethical dilemmas that leave one truly puzzled are
actually rarer than one might think. Ethical problems often seem more difficult than they really are
because of our weakness for “rationalizations”. Health and safety professional groups should be
encouraged by their members to continue their work in developing and revising codes of professional
ethics, and to set up fair processes for dealing with cases. Professional organizations such as the BCRSP
can provide the setting and opportunity for members faced with difficulty to get advice from more
experienced members. It goes without saying that education is necessary to supplement professional
codes of ethics.
Application of the Rules of Professional Conduct (the Code)

The CRSP should be able to apply the BCRSP’s Code.
Law and Ethics (LE)
We have been applying the BCRSP’s Code in a number of the previous competencies. Here we are
examining the use of the BCRSP’s Code in general and in the specific processes involving complaints
and discipline.
One could have a system where an apprentice learns from a master. But what would ensure consistency
within the community of practitioners? One function then of a professional code is to ensure consistency
and clarity in the community. A member of the public or a workplace party can count on an OHS
professional to be “singing from the same hymn book” as the last and the next OHS professional. This is
part of the meaning of the “integrity” of the OHS profession (as opposed to the integrity of an individual
OHS professional).
What is the role of a professional code of ethics? It helps clarify values and rules, it strengthens group
identity and collegiality, it fosters public confidence, and it can be used as a framework for discipline. The
“audience” is the public, employers, employees, clients, fellow professionals, and others. A code of ethics
can be inspirational, educational, a tool for decision-making and a reference point. It makes it easier for
the professional to resist pressure to be unethical by referring to a code of ethics as an authority. It
bolsters a professional’s resolve when seduced by rationalizations we have discussed.
One can also criticize over-reliance on a code of ethics. It can instil complacency (“we’re ethical because
we have a code of ethics”). If it isn’t used or enforced, the suspicion might be it’s there simply to polish the
group’s public image or to bolster a professional monopoly. It must be said that a code of ethics doesn’t
create ethics and it is not really possible to completely codify ethics. Collateral education is necessary to
bring a code of ethics alive.
Why should a member of a profession obey a professional code of ethics? While there are a number of
good reasons, the short answer is that the member agreed to abide by the code when he or she joined
the profession. One has a simple duty to keep promises.
For a complaint made under the BCRSP’s Code, you should be able to follow through the process from
initial complaint to resolution.
BCRSP Bylaws – Duty to Report Professional Misconduct
The BCRSP’s Bylaws require that a CRSP who reasonably believes that another CRSP has engaged in
professional misconduct must report the incident(s) to the BCRSP’s Executive Director, as follows:
4.04 Mandatory reporting obligations

Every Certificant who has reasonable grounds to believe that a Certificant has engaged in Professional
Misconduct shall report the information to the Executive Director in writing within ten (10) days of
obtaining the reasonable grounds unless,
(a) the Certificant is aware that it has already been reported by another party, or
(b) the Certificant is prevented by law from making the report.
Every Certificant who is convicted of a criminal offence or an offence under the health and safety
legislation of any jurisdiction shall report every such event to the Executive Director in writing within ten
(10) days after the event.
Law and Ethics (LE)
BCRSP’s Rules of Professional Conduct Complaint Form
The BCRSP’s Complaint Form can be found on the BCRSP’s website, and should be reviewed. There is
a considerable amount of information which a complainant must provide such as a clear description of the
alleged unethical conduct of a named CRSP, a chronology of events, specific details (e.g. the section(s)
of any legislation allegedly breached. Evidence of a complaint (documents) should be provided. A
complainant must state that he or she has read the BCRSP’s Rules of Professional Conduct and the
Professional Conduct Procedures. Submitted information is to be kept confidential and the accused
CRSP receives a copy of all submitted information.
Reproduced below is version 1.03 of the BCRSP’s Professional Conduct Review process, effective
January 13, 2014.
Professional Conduct Review
PURPOSE
To establish and administer a professional conduct review procedure for addressing complaints against
Canadian Registered Safety Professional (CRSP)®/ Professionnel en sécurité agréé du Canada (PSAC)®
Certificants.
SCOPE
The scope of this policy and procedure is to investigate complaints, which allege a violation of the Rules
of Professional Conduct or an act of professional misconduct as described in the bylaws.
DEFINITIONS
Certificant – a Practicing or Non-Practicing member of the BCRSP.
Complainant – The person who files a complaint against a Certificant. A Complainant may be a member
of the general public, a Certificant, an applicant to the BCRSP, a candidate or an employer.
Business Days – Working days.
“Professional Misconduct” means, an act or omission:

 that is inconsistent with the Rules of Professional Conduct,
 that is described as Professional Misconduct in the bylaws,
 that constitutes a failure to comply with an obligation in the bylaws or a direction or order made by
a committee under the bylaws,
 that, without the express approval of the Board, results in the Certificant retaining, occupying
office space with, using the services of, or employing in any capacity having to do with the
profession, any person who:
o has had his or her Certification revoked as a result of disciplinary proceedings; or
o has resigned as a Certificant in the BCRSP while a matter involving him or her is in the
process of being brought before, or is before the Professional Conduct Committee or
Discipline Committee,
 relevant to the practise of the profession that would reasonably be regarded by Certificants as
disgraceful, dishonourable or unprofessional, or
 that is unbecoming a Certificant;
Law and Ethics (LE)
Respondent – A Certificant who is the subject of a formal complaint.
Rules of Professional Conduct means the Code of Ethics of the BCRSP, as published on the BCRSP
website.
Committee Make Up
The Professional Conduct Committee may sit in panels appointed by the Chair or Vice-Chair. Three
members of the Professional Conduct Committee constitute quorum.
Procedure
Submission of Complaints:
The expectation of the Professional Conduct Committee (PCC) is that the Complainant and the
Respondent have communicated directly to attempt to resolve the concerns before a complaint is lodged.
All complaints against a Certificant alleging a violation of the Rules of Professional Conduct or any
violation as listed in the bylaws must be submitted in writing using the prescribed complaint form
(Doc.058), including sufficient and relevant supporting documentation, and be addressed to the Executive
Director.
Practicing Certificants who do not complete their certification maintenance submission by the prescribed
deadline may, after being given at least 60 days notice of the failure to comply, be referred to the
Professional Conduct Committee. If for any other reason, the Certification Maintenance Committee
believes that the Certificant may have engaged in Professional Misconduct, the Certificant may be
referred to the Professional Conduct Committee.
The BCRSP will not act on the basis of an anonymous complaint.
Receipt of Complaints:
All complaints will be tracked using a distinct reference number assigned by the Executive Director (eg.
“Case 11-001 with “11” being the year and “001” representing sequential numbering of complaints).
Acknowledgement of receipt of the complaint will be sent to the Complainant within fifteen (15) days of
receipt.
Notice of the receipt of a complaint will be sent to the Respondent(s), usually within fifteen (15) days of
receipt of the complaint. The notice will include:
 the complaint or a summary of the allegations
 a copy of the Rules of Professional Conduct
 a copy of the relevant provisions of Part 4 of the bylaws (Complaints and Discipline)
The Executive Director shall promptly forward complaints to the PCC.
PCC Review:
The PCC will conduct a review of the complaint to determine if the complaint falls within the scope of this
policy. The PCC shall consider, and if necessary, investigate all complaints made to the BCRSP about its
Certificants.
Law and Ethics (LE)
The PCC may do any of the following:
1) The PCC may request additional documentation/information from the Complainant regarding the
complaint before a decision to investigate is made.
2) If the PCC concludes that:
a. The complaint would better be dealt with by another regulatory body or the courts, it
must, absent exceptional circumstances, postpone its investigation of the complaint until
the other regulatory body or the court has dealt with the matter. The PCC need not give
reasons for this decision.
b. The complaint is deemed to be frivolous or vexatious or otherwise inappropriate to
investigate, the PCC may decide not to investigate or continue to investigate the
complaint. The PCC shall give reasons for this decision.
c. The PCC may decide not to continue to investigate a complaint that is withdrawn.
However, the withdrawal of the complaint does not affect the PCC‘s authority to continue
to deal with it.
3) The PCC may determine an investigation is warranted.
Communication regarding the initial PCC review and next steps/action to be taken (including if an
investigation is to commence) will be sent to the Complainant and Respondent.
Investigation
If a decision to investigate is made by the PCC, an investigation will commence.
The PCC may appoint investigators, including persons employed by the BCRSP, for the purposes of
investigation of complaints. Every investigator who exercises powers under the Bylaws shall, on request,
produce written proof of his or her appointment.
Investigators Powers
Unless it is not permitted by law, while conducting an investigation under this section an investigator may,
 at any reasonable time, enter and inspect the business premises of the Respondent,
other than any part of the premises used as a dwelling;
 question and require the Respondent to provide information that the investigator believes
is relevant to the investigation;
 require the production from the Respondent of and examine any document or thing that
the investigator believes is relevant to the investigation under the Respondent’s control;
 on giving a receipt for it, remove any document or thing under the Respondent’s control
that the investigator believes is relevant to the investigation for the purposes of making
copies or extracts of any document or information, but the making of the copies or
extracts shall be carried out with reasonable dispatch, taking into account the scope and
complexity of the work involved in making the copies or extracts, and the document or
thing shall afterwards be returned promptly to the Respondent from whom it was taken;
Law and Ethics (LE)
 use any data storage, processing or retrieval device or system used in carrying on
business on the premises that is under the control of the Respondent in order to produce
a document in readable form; and
 after notifying the Respondent first, request information from other regulatory bodies.
PCC Decision:
Upon completion of the investigative process, the PCC shall notify the Respondent of the investigation
findings.
The Respondent will be given thirty (30) days to respond to the investigation findings in writing.
After notifying the Respondent and giving the Respondent thirty (30) days to respond to the complaint in
writing, the Professional Conduct Committee may do one or more of the following:
 direct that the matter be referred, in whole or in part, to the Discipline Committee;
 direct that the matter not be referred to the Discipline Committee;
 provide written recommendations to the Respondent; or
 take any action that it considers appropriate in the circumstances that is not inconsistent with the
bylaws.
Timeline for Disposing of Complaints:

The PCC will endeavour to dispose of all complaints within 150 days. If the PCC is unable to do so, the
PCC will notify the Complainant and Respondent of that fact, of the reasons for the delay, and of the
expected disposition date.
The BCRSP’S Bylaws – The Discipline Committee
The second tier in the BCRSP’s ethics complaint process is the Discipline Committee. The following are
the provisions of the BCRSP’s Bylaws which cover the process under the Discipline Committee.
4.10 Discipline Committee

The Discipline Committee may sit in panels appointed by the Chair or Vice-Chair. One member of the
Discipline Committee shall whenever possible be a member of the public, and may be the Public
Member, unless there is a vacancy in the Public Member position or there is a conflict of interest. Three
members of the Discipline Committee constitute quorum.
The Discipline Committee shall hear every matter referred to it by the Professional Conduct Committee.
4.11 Hearing public

A Discipline Committee hearing shall be open to the public unless there are special circumstances that
outweigh the usual principle of open hearings.
4.12 Parties
The parties to a hearing under section 4.11 are the BCRSP and the Certificant who is the subject of the
complaint.
4.13 Procedure
The Discipline Committee shall conduct its hearings in any matter that is just and fair and may issue
Rules of Procedure and may give directions or rulings as to the procedure that shall be followed in a
specific hearing.
Law and Ethics (LE)
4.14 Possible orders where there is a finding of Professional Misconduct

If, after a hearing, the Discipline Committee finds a Certificant engaged in Professional Misconduct the
Committee may, do one or more of the following:
a revoke the Certificant’s Certification;

b suspend the Certificant’s Certification;
c despite anything else in these bylaws, direct that a Certificant refrain from using any designation,
term, title, initials or description authorized by the BCRSP;
d issue a reprimand;
e direct the Certificant to take any specified rehabilitative measure, including requiring the
Certificant to successfully complete specified professional development courses or to seek
specified counselling or treatment;
f impose restrictions or conditions on the right of the Certificant to practise the profession while
remaining a Certificant of the BCRSP;
g direct that the imposition of a measure under this article be postponed for a specified period or on
specified terms, including the successful completion of specified courses of study;
h direct that the Certificant pay all or part of the costs and expenses of the BCRSP in investigating
and prosecuting the complaint including the costs and expenses of the hearing;
i direct that a failure to comply with the Committee’s order shall result in the suspension of the
Certificant’s Certification until the Certificant complies; or
j make any other order that is not inconsistent with the bylaws or the Act or Regulations that the
Committee considers appropriate in the circumstances.
4.15 Effect
Unless the Discipline Committee orders otherwise, a final decision or order of the Discipline Committee
under this section takes effect thirty (30) days after the date it is made unless it is appealed to the
Appeals Committee, in which case the final decision or order is stayed unless the Appeals Committee
directs otherwise.
4.16 Preliminary suspension, restrictions

At any time after a matter respecting a complaint against a Certificant is referred to it by the Professional
Conduct Committee and before making a final decision or order, the Discipline Committee may order that
the Certificant’s Certification be suspended, or be subject to any restrictions or conditions that the
Committee may specify, pending the outcome of the hearing, if there are reasonable grounds to believe
that to do otherwise may result in harm to the public.
BCRSP’s Bylaws – Appeal from the Discipline Committee Decision
4.17 Appeals Committee

A party to a proceeding before the Discipline Committee may appeal a final decision or order of the
Discipline Committee to the Appeals Committee by filing with the Executive Director a Notice of Appeal in
the form available from the Executive Director setting out the decision being appealed, the grounds for
the appeal, the order sought and the other information requested on the form. The Executive Director
need not process an appeal where the Notice of Appeal is incomplete within thirty days of the day the
decision is released. Three members of the Appeals Committee constitute quorum.
4.18 Parties to an appeal

The BCRSP and the Certificant are parties to an appeal.
Law and Ethics (LE)
4.19 Grounds for appeal

The grounds of appeal are limited to a denial of natural justice or an error on the record of the decision of
the Discipline Committee.
4.20 Record for the appeal

The Executive Director shall prepare at the expense of the person requesting the appeal sufficient
quantities of the record of the decision under appeal for the parties and the Appeals Committee.
4.21 Fresh evidence

The Appeals Committee shall not permit additional or fresh evidence, other than evidence about the
process followed by the Discipline Committee solely for the purpose of demonstrating that there was a
denial of natural justice, unless the additional or fresh evidence:
a is apparently credible,
b if admitted it would probably have an important influence on the result, and
c it could not have been obtained by reasonable diligence at the time of the original decision.
4.22 Form of appeal

Unless the Appeals Committee concludes that the appeal is frivolous or vexatious or without merit, the
Appeals Committee shall consider the appeal and shall adopt such procedures it considers fair in the
circumstances including advising the Certificant that the appeal will be held through the exchange of
documents only, by teleconference or in person.
4.23 Notification
The Executive Director shall notify the parties of the date, time, manner and, if necessary, location of the
appeal and of the details of any requirements for steps that must be taken before the determination of the
appeal, such as filing documents or written argument.
4.24 Appeals proceedings public

A proceeding before the Appeals Committee under this section shall be open to the public unless there
are special circumstances that outweigh the usual principle of open hearings.
4.25 Jurisdiction, powers of Appeals Committee

The Appeals Committee shall hear the appeal and may,
a make any decision or order that could have been made by the Discipline Committee;
b order a new hearing, in whole or in part, before the Discipline Committee, including before a
different panel of the Discipline Committee; or
c dismiss the appeal.
4.26 Effect of Appeals Committee decision or order

A decision or order of the Appeals Committee under section 4.25 takes effect immediately after the
decision is released, unless the Appeals Committee orders otherwise.
4.27 Decision, order final

A decision or order of the Appeals Committee under section 4.25 is final and is not subject to further
review or challenge.
Law and Ethics (LE)
4.28 Publication
The decisions of the Discipline Committee and the Appeals Committee shall be published on the BCRSP
website and shall include the name of the Certificant unless no finding has been made against the
Certificant or the only order made or confirmed by the Committee is a reprimand.
4.29 Reinstatement
a) Except where otherwise specifically provided, any Certificant whose Certification is suspended for
any reason may at any time prior to termination of Certification pursuant to section 2.06
(Termination), whether or not the condition giving rise to the suspension has been removed,
apply to the Executive Director to have the suspension terminated.
b) Except where otherwise specifically provided, any person whose Certification in the BCRSP is
terminated for any reason may at any time, whether or not the condition giving rise to the
termination has been removed, apply to the Executive Director to be reinstated as a Certificant.
c) A Certificant who has been suspended or expelled as a result of a disciplinary decision may not
apply for reinstatement until the suspension has been served or until at least one (1) year after
the expulsion has been in effect.
d) Where, in the opinion of the Board, it is just and equitable or in the best interest of the BCRSP to
do so; the Board may by resolution:
i. terminate the suspension of any Certificant on such terms and conditions as the Board
may determine; or
ii. reinstate or readmit as a Certificant any person whose Certification has been terminated,
on such terms and conditions as the Board may determine.
Competency LE10: The Consequences of Professional Errors and Omissions

The CRSP should understand the consequences of professional errors and omissions.
Legal liability of the OHS professional at common, civil liability, involves a plaintiff successfully suing the
OHS professional, with a court ultimately awarding the plaintiff a remedy (damages ($), an injunction, a
declaration of status, “specific performance” (an order to carry out the terms of a contract)).
The existence of workers’ compensation regimes has a large effect on the potential liability of the OHS
professional. Workers’ compensation legislation across Canada generally prohibits an injured worker, or
the family of a deceased worker, from suing a co-worker. The OHS professional who is employed as an
“OHS manager” or “OHS Coordinator” is such a co-worker. Workers’ compensation regimes also prohibit
lawsuits against outside contractors if they are themselves registered with the workers’ compensation
regime. The legislation of each province has to be consulted carefully to see if independent OHS
consultants are required to be covered by workers’ compensation or not. If not, then there is a possibility
of the OHS consultant being sued as a ‘third party” to the compensation system.
It is important to note that workers’ compensation regimes prohibit lawsuits for damages for the kinds of
harm that are insured by the compensation regime (harm to workers, lost wages, loss of enjoyment of life
by the worker or family). Workers’ compensation regimes do not cover losses from accidents such as
property damage, production interruption, environmental releases, and so on. Hence, an OHS
professional may not be liable for losses covered by workers’ compensation, but can be liable for other
types of losses.
Law and Ethics (LE)
In addition to the question of whether the OHS professional is an employee or a contractor, it is also
important what sort of legal entity the OHS professional is carrying on business as, if functioning as a
consultant. An OHS consultant can carry on business as a sole proprietor or in partnership. In which case
the consultant can be personally sued and be personally accountable for the damages that a plaintiff wins
in court. If the OHS consultant is carrying on business as a corporation, then the corporation is the legal
entity which is party to the consulting contract and which is ultimately liable in law. The OHS consultant
does not have his or her own personal assets at risk. Only assets owned by the corporation can be
seized to pay for the plaintiff’s judgment award. There are many issues to be considered when deciding
whether to incorporate an OHS consulting business and the potential legal liability is one of the most
important factors. It is important to note when a draft contract requires the OHS professional to sign as a
party in addition to the corporate entity – this will largely eliminate the protection of a corporation.
Liability in Contract
For the CRSP to be liable in contract law, there must be a contract to which the CRSP is a party. The
OHS professional will be liable in contract to other parties of the contract. That is, an aggrieved individual
must have “privity of contract” before being allowed to sue on the contract. A “contract of service” is an
ordinary employment contract. A “contract for services” is a contract that an OHS consultant would have
with a client. A consulting contract is for a specific job, not for on-going direction of the consultant’s work.
An OHS consultant working under a “contract for services” would be a self-employed contractor, not an
employee. For purposes of OHS regulatory law, some OHS Acts make no distinction between an
employee and a contractor. For purposes of legal liability for poor performance it matters a great deal
whether one is an employee or a contractor.
A contract is a promise or set of promises, for breach of which the law gives a remedy, or the
performance of which the law recognizes as a duty. A contract is a legally enforceable promise. A CRSP
who has promised to help a friend with certain OHS work, but does a bad job causing harm, will only be
legally liable if that promise is a legally enforceable promise, or contract.
For there to be a contract, there has to be an actual agreement between the parties. The agreement
consists of the obligations that the parties agree to accept. (This is one reason why contract law falls into
the category of “private law” – the content of the duties is created by the parties.) There are generally
three ways an agreement can be formed:
1. An Act for a Promise. The client implicitly promises to pay when the client accepts the
consultant’s offer which is made by the act of performing services.
2. Promise for an Act. The client’s act of sending out invitations to submit irrevocable tenders – the
offer is accepted by the consultant’s promise in the tender to provide services (n.b. the usual
invitation to tender is not an offer).
3. Promise for a Promise. The most common method of agreement. The client promises to pay in
exchange for a promise by the consultant to provide services (or vice versa).
Consideration. There must be “consideration” for there to be a contract. I promise to do X with no promise
at all on your part – not a contract. I promise to do X if you promise to give me $1 if I do X – that is a
contract. That is the purpose in some agreements for the statement “in consideration of $1, receipt of
which is hereby acknowledged…”. Consideration is the main difference between an unenforceable
promise and a contract.
Intention. There must be an intention of the parties to create legal obligations. Be careful of informal
writings (e.g. an exchange of emails). There may be a contract, with the content of the contract being in
Law and Ethics (LE)
the informal communications, even though a formal contract was never drawn up. Contracts, except in
certain cases such as the sale of land, do not have to be in writing.
Content of the Contract

1. Duties of the Consultant to the Client
2. Client's Duties to the Consultant
3. Retaining Sub-consultants
4. Termination and Suspension
5. Scope of Authority of Consultant to Negotiate with Others
6. Certification by the Consultant
7. Ownership and Use of Intellectual Property
8. Responsibility for Interpreting OHS Legislation
9. Dispute Resolution (Arbitration)
10. Schedule of Payment
11. Insurance, Limitation of Liability
The OHS consultant will be liable in contract for failure to carry out a promise in the contract. It is critical
that the OHS consultant not promise things that cannot be done or cannot be properly measured. It is
very unwise for the consultant to promise to “ensure compliance”, or “ensure due diligence”, or “ensure
zero losses”.
The Standard of Care Owed by the Consultant in Contract

The OHS Consultant owes a duty to exercise the skill, care and diligence which may reasonably be
expected of a person of ordinary competence, measured by the professional standard of the time.
 Consultant does not have to be the best (unless it is so covenanted).

 Consultant is judged by the standards existing when the work was done.
 Consultant can follow the accepted mainstream practise even though contrary professional
opinion exists.
 Consultant does not guarantee the work will be successful (unless it is so covenanted).
Breach of Contract
Three elements must be proved for contractual liability:
1. The contract was broken;
2. There was a loss as a result of the breach; and
3. The loss was not too remote.
Concurrency of Contract and Tort
Historically, the existence of a contract precluded a duty in tort law. It is now possible to be liable to the
same person in both contract and tort simultaneously. It is also possible to be liable in contract to the
client and liable in negligence to a third party. The parties to a contract can limit tort liability by the
wording of the contract. Still, tort liability could exist if there were acts that were independent of the
contractual relationship.
Liability in Tort -- Negligence

The principle of “proximity” in the law of negligence has been expanded. That is, the scope of entities to
whom the consultant may owe a duty has increased over the years through common law decisions. The
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consultant may owe a duty of care to the “neighbour” of the client. In contract law, the scope of claimants
remains limited to the parties to the contract.
 The OHS consultant must owe a “duty of care” to the plaintiff;

"...as between the alleged wrongdoer and the person who has suffered damage there
is a sufficient relationship of proximity or neighbourhood such that, in the reasonable
contemplation of the [alleged wrongdoer], carelessness on his part may be likely to
cause damage to the [person who did suffer damage] -- in which case a prima facie
duty of care arises."
 The OHS consultant must have breached that duty of care; and
 The plaintiff's damages must have been caused by the breach.
The OHS consultant might carelessly make statements in a report that people other than the client rely
on. This may constitute “negligent misrepresentation”. A failure to mention important items or issues may
sometimes constitute negligent misrepresentation.
The OHS consultant’s “duty to warn” people who are not parties to the contract. Closely associated with
the duty not to make negligent misrepresentations is the positive duty to warn anyone who is "in
proximity" of any hazards the consultant knows about. Example: the consultant retains a sub-consultant
to do some tests. The results are reported to the client by the consultant. The sub-consultant knows that
the tests done were inadequate. The sub-consultant may have a duty to warn the client; a failure to do so
may give rise to tortuous liability.
Liability of the OHS consultant to third parties for physical damage. If the Consultant does work or gives
advice regarding, for example hazardous materials, and is negligent, and the client’s neighbour is harmed
(explosion, fire, toxic release), then the OHS consultant may be liable to the neighbour for any physical
damage.
Methods of Avoiding Claims
1. Choosing the project wisely

2. Defining responsibility carefully
3. Close analysis of the contract
4. Clarify risks associated with novelty
5. Good on-going communication
6. Improved certification practices
7. Contractual limitations
8. Disclaimer to third parties
Common Style of Disclaimer:
“Any use which a third party makes of this report, or any reliance on or decisions to be
based on it, are the responsibility of such third parties. ‘OHS Consultant’ accepts no
responsibility for damages, if any, suffered by any third party as a result of decisions
made or actions based on this report.”
Law and Ethics (LE)
Subtlety #1: Purchasers of a business may require a letter from the seller's consultant allowing the
purchaser to rely upon the consultant's report. Subtlety #2: But the Purchaser should not rely on a report
unless the Purchaser is fully aware of the scope of investigation set out in the contract between the seller
and the consultant.
Defamation -- “Slander of Goods”

Disparaging a company’s product -- a statement that is honestly made but is untrue, without necessity of
malice. In an accident investigation you wrongly conclude that a piece of equipment had a design or
manufacturing flaw. This conclusion is publicised and causes commercial harm to the manufacturer of the
equipment. This can be the basis of tortuous liability.
Copyright Issues
Examples of Breach:
1. You replicate text or diagrams from a copyrighted source to use as training materials.
2. You replicate policies, statements of responsibility and program descriptions for your company’s
OHS manual.
3. As a consultant, you provide a package of inspection checklists to be used by your client. The
checklists were taken from a number of sources.
Role of Professional Liability Insurance

The OHS consultant enters into a contract with an Insurer so that if a client or third party sues the
consultant, the insurer will defend the consultant and will pay any legitimate damages. In return, the
consultant pays premiums and must co-operate in the defence.
Insurance Issues:
 Time period covered by the policy

o [retired consultants must continue insurance coverage]
 Types of claims covered by the policy
 Exclusions
o Professional not business risk covered
o Unreasonable assumed risk (guarantees, warranties)
o [n.b. re "you're in compliance"]
o Assumed liabilities (of sub-consultants)
o Specialized work the consultant is not qualified to do
 Claims handling service by the Insurer
 Loss prevention services
 Cost
 Deductible
Summary
This content of this Competency is of greatest concern to the OHS professional who will be carrying on
business as a consultant. The CRSP who is contemplating commencing an OHS consulting practice
Law and Ethics (LE)
should seek legal, accounting and insurance advice, as well as assistance from a more experienced
member of the OHS profession on the more practical matters.
Competency LE11: The Role of the CRSP and the Limits of Professional Practice.
The CRSP should understand the limits of the CRSP’s professional practice.
Recall the BCRSP’s Code; Canadian Registered Safety Professionals (CRSPs) shall:
Represent their qualifications and experience accurately and not

knowingly make false or misleading statements.
Taking a course or two in industrial hygiene or ergonomics doesn’t make the OHS professional an
industrial hygienist or an ergonomist. Again, we are easy to self-deceive. One typical area of self-
deception is the distinction between academic experience and work experience. We tend to believe we
know something because we studied it rather than because we have actually done it. We also deceive
ourselves about how much we have forgotten. You may be “qualified” because of an educational program
you took 20 years ago, but, honestly, you don’t remember much as you haven’t used that knowledge set
over the years – so are you truly qualified? So, one must be wary of formal qualifications and of
education alone where experience is necessary. To help with this standard, ask yourself what the
audience would say if your credentials were being presented up on a screen in front of a conference of an
OHS professionals, and the job to be done was described. Would your imaginary audience nod in
agreement or jeer?
Perhaps an OHS professional will chafe at this standard. “How will I ever get experience if I don’t try new
things?” “How will OHS advance if we never experiment with new techniques?” True, but we don’t want to
learn at the expense of the workplace parties (or others). We try to avoid learning by trial and error in the
workplace and we have formal techniques to assess hazards and risks before introducing novelty into the
workplace. By analogy, the CRSP should prepare before launching into a new area of professional
activity. Take a course or seminar, partner with an experienced OHS professional, engage in the
equivalent of a mock-up or prototype testing, etc. When trying out something new, the workplace parties
need disclosure as extra precautions may need to be taken.
We know from the BCRSP’s Code that the CRSP has a duty to keep up to date. The cynic believes
professional groups run courses in order to make money from a captured audience – their members. In
reality, a professional must accept that the standards are forever being raised. More knowledge and
understanding, new technology and techniques – all mean that if the OHS professional rests on his or her
laurels he or she will become incompetent over time. The CRSP must be competent so the CRSP must
continue to upgrade. Be wary, though, of proponents of new techniques or technologies claiming that you
ought to adopt their technique or technology or be incompetent. Not all change and innovation is good
and the latest thing isn’t always the best.
CRSPs should follow recognized scientific principles when practicing and should perform services only in
the areas of their competence. A form of dishonesty in competition is to hold out to others that you have
expertise that you actually lack. Serious harm can result when one undertakes a project that one has little
ability to fulfill properly. Because OHS practice involves so many sub-specialties, this is a source of many
problems for the OHS generalist. A CRSP is required to be familiar with ergonomic and industrial hygiene
Law and Ethics (LE)
principles, but there are many activities in these two subject areas that the CRSP should not undertake
unless he or she is actually an ergonomist or a hygienist.
It may be unethical when a CRSP purports to be able to undertake OHS activities outside his or her
training or experience, but it is illegal for a CRSP to engage in professional activities that are legally
protected. The two major problem areas are engineering and legal practice.
Engaging in “legal interpretation” is a problem area. Most CRSPs are called upon to assist with regulatory
compliance. Many provide training services in which legal concepts such as “due diligence” or
“reasonable care” are discussed. While much of this activity is surely legitimate by virtue of necessity, it is
sometimes overlooked that it is both illegal and unethical to give a legal opinion professionally unless one
is a lawyer. There is a line that should not be crossed. The regulation of professions is within provincial
jurisdiction, so all provinces will have legislation similar to the following:
Law Society Act, R.S.O. 1990, CHAPTER L.8
Prohibitions
Non-licensee practising law or providing legal services
26.1 (1) Subject to subsection (5), no person, other than a licensee whose licence is not suspended, shall
practise law in Ontario or provide legal services in Ontario. 2006, c. 21, Sched. C, s. 22.
Non-licensee holding out, etc.

(2) Subject to subsections (6) and (7), no person, other than a licensee whose licence is not suspended,
shall hold themself out as, or represent themself to be, a person who may practise law in Ontario or a
person who may provide legal services in Ontario. 2006, c. 21, Sched. C, s. 22.
1.(1)
“person who is authorized to practise law in Ontario” means,
(a) a person who is licensed to practise law in Ontario as a barrister and solicitor and whose licence is not
suspended, or
(b) a person who is not a licensee but is permitted by the by-laws to practise law as a barrister and
solicitor in Ontario;
“person who is authorized to provide legal services in Ontario” means,
(a) a person who is licensed to provide legal services in Ontario and whose licence is not suspended, or
(b) a person who is not a licensee but is permitted by the by-laws to provide legal services in Ontario;
Provision of legal services

1.(5) For the purposes of this Act, a person provides legal services if the person engages in conduct that
involves the application of legal principles and legal judgment with regard to the circumstances or
objectives of a person. 2006, c. 21, Sched. C, s. 2 (10).
Same
1.(6) Without limiting the generality of subsection (5), a person provides legal services if the person does
any of the following:
1. Gives a person advice with respect to the legal interests, rights or responsibilities of the person or of
another person.
...
Law and Ethics (LE)
There will be a gray area no doubt, but the CRSP should strive to stay within the boundaries of teaching,
educating and describing and not engage in providing legal services by giving advice to an individual
about that individual’s rights and responsibilities under OHS and other legislation.
When is “safety engineering” really “engineering”? It is illegal to practice “professional engineering” unless
one is a professional engineer. The following is an example of legislation regulating engineering. All
provinces have similar legislation.
Professional Engineers Act, R.S.O. 1990, CHAPTER P.28

Licensing requirement
12. (1) No person shall engage in the practice of professional engineering or hold himself, herself or itself
out as engaging in the practice of professional engineering unless the person is the holder of a licence, a
temporary licence, a provisional licence or a limited licence.
Certificate of authorization
12(2) No person shall offer to the public or engage in the business of providing to the public services that
are within the practice of professional engineering except under and in accordance with a certificate of
authorization.
1.(1)
“practice of professional engineering” means any act of planning, designing, composing, evaluating,
advising, reporting, directing or supervising that requires the application of engineering principles and
concerns the safeguarding of life, health, property, economic interests, the public welfare or the
environment, or the managing of any such act;
The definition of “professional engineering” sounds quite similar to what CRSPs do in regards to
“engineering controls”.
Additional Resources
Suggested Reading on Ethics

G. L. Burgess and D. Mullen, “Observations of ethical misconduct among industrial hygienists in
England,” AIHA Journal 63:151-155 (2002).
P. Logan, “Industrial hygienists face many ethical dilemmas”, The Synergist, 12(11): 17-19 (2001).
C. A. Brincat and V.S. Wike, Morality and the Professional Life: Values at Work. Prentice Hall Inc., (2000).
The ideas in this book were very helpful in the preparation of this material.

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Canadian

Law and Ethics

Board of Canadian Registered Safety Professionals

Tel: (905) 567-7198

Last Revision: 2016

Law and Ethics (LE)

Originally Developed: 2001 Last Revision Completed: 2016

Overlap and Relations with other Domains

Learning Objectives for the Competencies

Competency LE1: Principles of Law

Specific learning objectives are:

The Constitution and the Charter of Rights

Specific learning objectives are:

Statutory Law and Interpretation

Specific learning objectives are:

The Common Law

Specific learning objectives are:

Specific learning objectives are:

Liability Related to Property Ownership

Specific learning objectives are:

Specific learning objectives are:

1. Be able to identify situations where issues concerning privacy may arise.

Subsidiary Federal Legislation

Specific learning objectives are:

Competency LE2: Introduction to OHS Law

Specific learning objectives are:

Specific learning objectives are:

The Concept of Due Diligence

Specific learning objectives are:

1. Understand the origin of due diligence in the common law of negligence.

The Concept of Deterrence

Specific learning objectives are:

Workers’ Compensation Legislation

Specific learning objectives are:

Criminal Law and OHS

Specific learning objectives are:

Competency LE3: Environmental Law

Specific learning objectives are:

8. Describe the elements of “riparian rights” as an environmental cause of action.

Competency LE4: Duties of the Workplace Parties

Specific learning objectives are:

Specific learning objectives are:

Competency LE5: Ethical Theories

Specific learning objectives are:

Competency LE6: Workers’ Rights

The Right to Know

Specific learning objectives are:

The Right to Participate

Specific learning objectives are:

The Right to Refuse Unsafe Work

Specific learning objectives are:

Competency LE7: The Duties and Powers of Enforcement Agencies

Specific learning objectives are:

Competency LE8: The Obligations of a CRSP

Specific learning objectives are:

Specific learning objectives are:

Competency LE10: The Consequences of Professional Errors and Omissions

Specific learning objectives are:

Specific learning objectives are:

Study Guide to Law and Ethics

Competency LE1: Principles of Law

Understand the following basic terms and phrases:

law justice lawsuit

Law and OHS