From mines to courtrooms: Norm Keith’s lifelong advocacy for OHS
Norm Keith OHS Honours OHS Lawyer of the Year
OHS Lawyer of the Year
Gold: Norm Keith, KPMG Law
Silver: Jamie Alyce Jurczak, Taylor McCaffrey
Silver: Lisa Bolton, Sherrard Kuzz
Norm Keith got an early taste of the dangers that workplaces can pose. He was working summers underground in the mines in Sudbury, Ont., to put himself through university.
“The second summer I was there, a worker was killed. Not somebody I worked with, I didn’t witness it, but it was still very real and very close to home,” said Keith. “That made a deep and lasting impression of the importance of health and safety.”
At another point during that gig, the union went on strike, which was also a bit of a revelation for him.
“That really gave me some insight and I saw the discomfort from both sides’ rhetoric,” said Keith.
Keith, partner, employment and labour law at KPMG Law LLP, has been named OHS Lawyer of the Year for 2023 at OHS Honours, the national health and safety competition from OHS Canada.
A trailblazer and well-know figure in OHS, Keith has appeared at the Supreme Court of Canada three times and authored a dozen books over his career that spans four decades. He has seen a big evolution in workplace safety during that time — some good, some bad.
But the landscape shifted where more regulatory oversight has created more stringent conditions for employers to navigate. For example, the Westray Bill, which allows for criminal prosecutions for health and safety incidents, became law in 2004. It came in the wake of the Westray mine disaster in Nova Scotia in 1992 that killed 26 coal miners.
“Fines are a lot higher today,” he said. “Officers and directors in Ontario, for example, can go to jail for a year or have a fine of up to $1.5 million, the same as a large corporation.”
According to Keith, there is no study that says more prosecutions equals better worker safety. “The things that do improve health and safety have nothing to do with penalties — not directly, at least,” he said. “What does work are active, non-polarized joint health and safety committees, strong leadership, an occupational safety system and a culture that embraces OHS at every turn.”
Keith’s record at the Supreme Court of Canada is two wins and one loss. The loss came in a 2013 ruling involving Irving Pulp & Paper concerning random alcohol and drug testing in what he called a “very divided bench.”
It ruled that, unless there is an out-of-control culture of drug and alcohol abuse, employers are not allowed to conduct random testing.
“Well, if you’ve got an out-of-control alcohol abuse culture or drug culture, goodness. You’re not going to need to test them,” he said. “In my view, it would be better to align the permissiblity of drug testing with the U.S. case law and with European practices.”
And with so much responsibility on employers to create and maintain safe workplaces, and with high penalties in place, Keith believes that testing would be a reasonable precaution in dangerous workplaces.
“We’re not talking about the office environment. We’re talking about safety-sensitive jobs in dangerous workplaces,” he said.
Keith said it’s a “dangerous thing” in his business to pull out the crystal ball and gaze at the future. But one wish he has is the creation of a national health and safety code for Canada, similar to what is seen in the United States and in Europe.
In order for this to work, he says, it would have to be non-binding guidance due to the challenges of getting agreement among all provinces and territories.
“If it was done well, collaboratively with both government and the private sector, you could have something that would be an excellent guide for a best practice,” he said. “Eventually, over time, it could be adopted by most jurisdictions and courts would know what a reasonable standard is for this type of hazard or that type of hazard.”
Winning the award
Keith said it’s nice, at any stage of your career, to receive professional recognition. He has spent a lot of time writing and speaking, outside of billable hours, to improve the safety landscape.
“It is my job, in a sense. But it’s also my professional passion to see less accidents and more collaboration between government and the private sector,” he said, along with more focus on acute injuries and mental health to support employers who are trying, by and large, to do their best.
“But they may not have the resources to know what the best looks like,” he said. “A best practice, along the lines of a health and safety code, would be something I’d love to see happen. A national code developed in collaboration with the government that would give guidance to employers would certainly help businesses to be more competitive and consistent, and help Canadian industry to feel more supported overall.