Looking back on the year that was in OH&S law
January 12, 2021
By
David Reiter
Dramatic shifts were few, but some notable developments arose
COVID-19 changed a lot in 2020, but not occupational health and safety, writes lawyer David Reiter. (dusanpetkovic1/Adobe Stock)
2020 was an interesting year in the world of occupational health and safety.
Workplaces struggled to stay open amid lockdowns, health concerns and an economic slowdown — and many courts were closed for much of the year.
As a result, dramatic shifts in the OH&S legal landscape were few and far between.
Nonetheless, there were some notable developments: COVID-19 propelled workplace hygiene to the forefront; the Supreme Court confirmed that corporations are not protected against cruel and unusual punishment; and the question of whether control needs to be exercised before contracting parties become employers to sub-contractors continues to be a source of uncertainty.
As 2021 begins, it’s worth taking another look back at the year that was 2020.
The COVID-19 effect
COVID-19 changed a lot in 2020, but not occupational health and safety.
In that respect, it only highlighted what we already knew — namely, employers must take all reasonable precautions to protect their workers’ health and safety.
And, if precautions hold a promise of protection, even without scientific certainty, they should be taken.
Nowhere was this more clearly seen than through the example of masks.
In July, the Ontario Labour Review Board decided the case of Inovata Foods Corp. v. Ontario. It involved the appeal of an order that required workers to wear masks.
On appeal, the argument was made that there wasn’t conclusive proof that masks actually prevented COVID-19 transmission.
However, in upholding the order, the board explained that employers have to take preventative measures, even where cause and effect cannot be proved with scientific certainty.
The question is whether the precaution promises a potential benefit. If it does, it reasonably ought to be taken. To do otherwise could leave workers unnecessarily exposed.
This is known as the precautionary principle and — at least in the context of COVID-19 — it is the law of the land.
As such, recognizing the uncertainty that comes with the novel coronavirus, 2020 made it clear that businesses must implement all precautions that hold out a realistic potential for benefit, including new emerging minimal standards such as the development and implementation of workplace safety plans, and sanitization, isolation/quarantine and contact-tracing protocols.
Cruel and unusual punishment
As we closed out 2019, I commented on a case which was then headed to the Supreme Court: Quebec (Attorney General) v. 9147-0732 Québec Inc.
It centred on whether minimum fine provisions against corporations contravened the constitutional guarantee against cruel and unusual punishment.
The case was decided in November, and in it, the court held that the purpose of the protection was to prevent violations of human dignity, which corporations cannot possess. As such, the protection cannot extend to companies.
While the point may seem obvious, the potential implications are far-reaching.
Recalling that deterrence is a key sentencing objective in OH&S prosecutions, absent this protection, the door — arguably — has been opened wider to the prospect of significant fines that for all intents and purposes could amount to corporate capital punishment.
That is, fines that are so large that they could bankrupt offender companies.
While the sentencing doctrine of proportionality may in some cases act as a restraint, several cases suggest that because deterrence is a paramount consideration, restraint may be illusory.
As such, this is a case that businesses should be keeping in mind as we move into 2021.
Control and employers
Up until 2019, the law related to who is an employer for OH&S purposes had been clear for nearly 30 years. One was an employer if one had the ability to control a worksite.
However, as 2019 ended, that law was set — possibly — to change.
The Greater Sudbury decision had made its way to the Ontario Court of Appeal, and it was poised to decide whether it was the act of exercising control over a worksite, or the ability to exercise that control, that defined who is an employer for OH&S purposes.
Unfortunately, the hearing was postponed due to COVID-19.
As such, and given that it is expected to decide when and how businesses are the employer of their subcontractors’ workers, it remains the case to watch from an OH&S perspective as we move into 2021.
On a practical level, it will very likely to decide how companies manage subcontractor relationships going forward.
David Reiter is a partner with Aird & Berlis in Toronto, and a regular columnist for OHS Canada.
