Recent Changes to the Alberta OHS Act Presented by David G. Myrol McLennan Ross LLP

Bill No. 6 Protection and Compliance Statutes Amendment Act Amends three Acts Occupational Health and Safety Act Safety Codes Act Fair Trading Act

Proclamation Received Royal Assent December 10, 2012 Some OHS amendments in force Some yet to be proclaimed

Amendments Over 20 Amendments Some “Game-Changers”

Interpretational Bulletin OHS (a.k.a. “WHS”) December 2012 issued Interpretational Bulletin Identifies 6 Major Changes http://www.humanservices.alberta.ca/documents/OHS-Act-Amended-LI031.pdf

Six Major Changes Administrative Penalties Power of OHS Officers Prime Contractor Duties of OHS Council Collection Powers of Government Service of Orders

Administrative Penalties Administrative penalties allowed Applies to employers, workers, contractors, prime contractors, suppliers Maximum penalty of $10K / day

Administrative Penalties (Cont’d) Section 40.3(2) If an OHS Officer forms “opinion” violation of Act, Reg., or Code failure to comply with: order issued under Act, Reg., or Code term or condition of acceptance issued under s. 34 term or condition, or requirement of an “approval” issued under the Code

Administrative Penalties (Cont’d) “Other features” No double jeopardy if administrative penalty paid Cannot be charged with same contravention 2 year limitation period from date of alleged contravention Same force and effect as a judgment if filed with ABQB

Administrative Penalties (Cont’d) Appeal Process First level is OHS Council Within 30 days from notice of admin penalty given May confirm, revoke or vary penalty Automatic stay of administrative penalty upon commencing an appeal to OHS Council

Administrative Penalties (Cont’d) Second level of appeal to ABQB Only on questions of law or jurisdiction ABQB may make any order considered proper Including costs Automatic stay of administrative penalty when commencing an appeal to ABQB

Administrative Penalties (Cont’d) Administrative penalties not in force until proclaimed (spring?) Many details yet to be determined vis-à-vis the regulations Authority to make regulations for administrative penalties delegated to the Lieutenant Governor in Council

Administrative Penalties (Cont’d) Broad scope of regulations in section 40(i.1) Form, content, manner in which they are to be given Amounts of the administrative penalties Factors to be taken into account Appeals from administrative penalties Any other matter the LGC considers necessary or advisable to “carry out the intent and purpose of the system of administrative penalties” Service of orders

Administrative Penalties (Cont’d) Purpose of administrative penalties?

Administrative Penalties (Cont’d)) OHS says: “There was no middle ground in the enforcement spectrum – between issuance of an order to comply and prosecutions through the courts.”

Administrative Penalties (Cont’d) OHS says: “The administrative penalties is developed as an additional tool to address circumstances of non-compliance. It is a compliance tool intended to encourage efforts to comply thereby reducing the risk of workplace injuries and illnesses.”

Administrative Penalties (Cont’d) Hon. Matt Jeneroux introduced Bill No. 6 Minister of Environment October 24, 2012 said:

Hansard “The intent of this legislation is to ensure willing and active compliance with existing regulations by creating new penalties and bolstering those that already exist for those who ignore the provisions of the three acts being amended.”

Hansard (Cont’d) “…the great majority of employers and businesses in Alberta willingly and carefully comply with the rules that are in place which govern their activities. However, there are some who repeatedly and chronically choose not to do so. The provisions of this act are aimed directly at them.”

Hansard (Cont’d) “This act sends a clear message that they will not be able to flout the rules and put either the safety or financial security of Albertans at risk without meaningful consequences. Administrative penalties will allow regulators to do much more than issue a warning to violators.”

Hansard (Cont’d) “In the past many of these warnings have been ignored, and the only way to deal with the situation was through protracted and costly suspensions or prosecutions. Administrative penalties provide for a middle ground, one which points to the seriousness of the violation in question and government’s commitment to eliminating those violations.”

Hansard (Cont’d) “…The administrative penalties make it clear that the cost of doing business is greatly reduced when they play by the rules. The [PCSAA] is about accountability. Those who put the public in danger will be held accountable for their actions. Those who put workers at risk of injury or death will be held accountable. Albertans have the right to expect a safe workplace…”

Prosecutions Summary of Alberta OHS Prosecutions Calendar Year Number of Prosecutions Completed Total Penalties Range of Court Penalties 2013 1 $1,500,000 2012 9 $3,651,250 $70,000 - $1,437,500 2011 20 $3,486,250 $11,500 - $431,250 2010 11 $1,737,250 $10,000 - $400,000 2009 10 $1,013,725 $1,150 - $300,000 2008 22 $5,083,000 $45,750 - $425,000 2007 12 $1,720,000 $70,750 - $350,000 2006 $1,534,500 $40,000 - $500,000 2005 $554,050 $2,000 - $100,000 2004 8 $597,500 $10,000 - $120,000 2003 $638,950 $2,000 - $105,000 2002 $795,650 $5,000 - $150,000

Administrative Penalties (Cont’d) OHS says (Bulletin): “There will be no impact on employers and workers who follow the workplace health and safety rules…Employers and workers who violate the occupational health and safety laws, especially repeat offenders, may be subject to a penalty assessed by the department.”

Administrative Penalties (Cont’d) Comments on administrative penalties Devil’s in the details Seems like a “big hammer” for a small problem Limited right of appeal Could invite abuses if not monitored properly Relevance to sentencing?

Thoughts? Administrative penalties are not “offences” Section 28 of the Interpretation Act “Offence” means an offence punishable on summary conviction Cannot be used to establish “second or subsequent offence” (s. 41(1)(b) OHS Act)

Thoughts? (Cont’d) Relevance to sentencing? Business implications?

Powers of OHS Officers Section 4.1 of OHS Act When requested by an OHSO: must provide proof of identity employers must identify their workers employed by them at the work site

Powers of OHS Officers (Cont’d) Section 40.4 No person shall interfere with or in any manner hinder an officer or peace officer who is exercising powers or performing duties or functions under this Act.

Powers of OHS Officers (Cont’d) Broad language “Interfere” “Hinder” Implications for accident response Solicitor client privilege?

Prime Contractor Amended s. 3 of the OHS Act 2 important changes Removed “at the same time” Reference “adopted code”

Prime Contractor (Cont’d) No requirement for employers to be “working at the same time” OHS says: A prime contractor is required whenever there are 2 or more employers “whose activities have a health and safety impact on each other or are interrelated”.

Prime Contractor (Cont’d) Prime contractors are “expressly” responsible for ensuring compliance with the OHS Code.

OHS Council Amendments to sections 7, 16 and 17 OHS Council gains importance Increased council’s duties and powers Same duties continue (appeals to OHS orders, permit suspensions and cancellations, and disciplinary action complaints)

OHS Council (Cont’d) New duty to hear appeals on administrative penalties May confirm, revoke or vary administrative penalties For the purpose of hearing appeals, the OHS Council given the same power vested in ABQB for the trial of civil actions

OHS Council (Cont’d) OHS Council given power to: summon and enforce the attendance of witnesses compel witnesses to give evidence under oath or otherwise

Collection of Creative Sentences Any overdue portion of a creative sentence is deemed to be a fine and collected as such Allows the government to collect creative sentence monies upon behalf of third parties

Service of Orders OHS Officers can serve orders by electronic methods Details to be provided in regulations yet to be developed Oral stop work orders deemed to be “served” at the time the oral order is made.

Safety Codes Act Increases maximum penalties From $15K to $100K for first offence From $30K to $500K for subsequent offence

Projections for 2013 “Tickets” coming? OHS Regulation expires March 31, 2013 New regulation or extension?

Projections (Cont’d) Higher sentences? More accountability for prime contractors? Hindering charges? Employer Task Force?

THANK YOU!