Canadian occupational health and safety law has developed over the last fifty years as a reaction to workplace accidents, injury and death. Canadian workers' compensation legislation predates Canadian OHS law. Since the Meredith report of 1914, a no-fault system of providing compensation to workers injured on the job has been in place in Canada. It appears that governments, employers, unions, and other workplace stakeholders were more concerned at the beginning of the 20th century with providing workers' compensation protection for injured employees and protecting employers from lawsuits, than from preventing accidents in the workplace.1
Workplace health and safety has no specific jurisdictional designation under the Canadian Constitution Act, 1867. The Constitution Act, 1867 sets out a division of powers between the federal and provincial governments. OHS is not the subject of an explicit reference to the division of powers between the federal and provincial governments. Therefore, courts, from time to time, have been called upon to determine whether or not the provincial or the federal government has authority to regulate the workplace by OHS legislation. Approximately 10 percent of Canadian workplaces are federally regulated and 90 percent are provincially regulated for the purposes of labour relations, employment standards, workers' compensation and OHS. Therefore, provincial OHS statutes and regulations regulate the vast majority of Canadian workers.
OHS statutes generally set the framework for the health and safety requirements, standards and procedures in the jurisdiction in which they apply. OHS statutes in Canada are based on the internal responsibility system. The internal responsibility system is an overlapping system of rights and responsibility of workplace stakeholders. In addition to the internal responsibility system, Canadian OHS law is also based on the external responsibility system. The external responsibility system is the lawful authority establishing government regulatory accountability. The external responsibility system has two means of enforcement of OHS requirements, standards and procedures. First, is the issuance of orders or directions by inspectors or officers, employed by various government regulators? The issuance of an order may be to stop working immediately, or to change a work practice within a reasonable period of time. Second, is the laying of charges under OHS laws in Canada as a means of enforcing the duties for various workplace parties? It is an OHS regulatory offence to contravene these duties. This approach to establishing an offence is different than the establishment of a crime under the Criminal Code. Under the Criminal Code certain conduct is expressly designated to be a criminal offence.
The enforcement of OHS law against workplace stakeholders that have legal duties has been a growing trend across Canada. The incidents of enforcement of Canadian OHS laws by way of prosecution have increased since the mid-1970s. Workplace stakeholders may include the employer, supervisors, officers, directors, professional engineers, architects, suppliers, workers and others. Although many workplace stakeholders have legal duties under Canadian OHS law, employers are the primary stakeholders that are prosecuted with OHS offences.
