Right to Refuse Unsafe Work – Federal Developments

March 2017

In BC, a worker has a right to refuse work if he/she “has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person” pursuant to Section 3.12(1), of the Occupational Health and Safety (OHS) Regulations. There is no general definition of the term “danger” in the OHS Regulations.

In the federal jurisdiction, a worker has a right to refuse work if the working condition presents a danger to the worker pursuant to the Canada Labour Code (the “Code”) – Part II. Currently, “danger” is defined in Section 122(1) of the Code as “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.”

Under the old definition, “danger” was “any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered…”

There have only been two cases that have considered the meaning and application of the new definition of “danger” since these amendments came into force: Canada (Correctional Service) v. Ketcheson, 2016 OHSTC 19 and Keith Hall & Sons Transport Limited v. Robin Wilkins, 2017 OHSTC 1.

These cases establish that:

1. The current definition of danger is different in nature from its predecessors. Thus, it is neither a reversion to the same scope of danger as pre-2000 (i.e. imminent danger), nor is it a simplification of the 2000-2014 definition.

2. A “hazard”, “condition” or “activity” only applies to direct causes of accidents and injuries. It is not meant to capture low risk hazards, root causes, such as policies and programs, or disputes about issues other than direct causes of accidents and injuries to health.

3. An imminent threat is established when there is a “reasonable expectation that the hazard, condition or activity will cause injury or illness soon (within minutes or hours)” (Ketcheson, at para. 193).

4. A serious threat is “a reasonable expectation that the hazard, condition or activity will cause serious injury or illness at some time in the future (days, weeks, months, in some cases years)” (Ketcheson, at para. 205).  A very low risk, either because of low probability or because of low severity, is not a threat (Ketcheson, at para. 198).

Employer Takeaway

With the amendments to the definition of “danger” were first made, they were seen as significant by many stakeholders. In particular, there was a concern that they would put workers’ lives at risk by redefining dangerous work.  These concerns have largely been abated by the above-noted Tribunal decisions, which have interpreted the amendments as a tweak rather than an upheaval.  Nevertheless the changes are in the right direction, providing more of a balance between workers’ safety and the practical ability of employers to conduct their business, elements of which have inherent or residual risk.

There will be some interesting decisions coming from the Tribunal in the next few months involving the evolution from 3-person to 2-person crews in the armoured car industry.  Arguments were concluded in one case at the end of January 2017 and the second case is expected to be heard later this year.  Stay tuned.