[authors: Hiebert, Tari M.; Miller, Jennifer A.]

On November 7, 2012, changes to Saskatchewan’s Occupational Health and Safety Act came into force.¹ These changes will impact the performance of work in Saskatchewan, and should be considered when reviewing existing contracts for work in Saskatchewan, as well as during the formation of future agreements.

Some of the most significant changes are the addition of further general duties on employers, the creation of a general duty on supervisors, and an expanded definition of the defined term, contractor.

The scope of employer and supervisor obligations has been significantly increased, and companies with operations in Saskatchewan are advised to consider whether their operations are compliant with these new and increased obligations. By virtue of the expanded definition of a contractor, contractor obligations will now apply to a larger group of contracting parties than previously. Readers with operations in Saskatchewan should be mindful that the definition of a contractor in Saskatchewan is now much broader than the definition of a contractor under the Alberta Occupational Health and Safety Act.

There are two additional amendments that will have a significant impact on occupational health and safety law in Saskatchewan, but they have not yet been proclaimed.² These amendments would (1) introduce a prime contractor regime and (2) significantly increase the fines for offences. They are not in force at this time.

It is not known when the amendments introducing a prime contractor regime may come into force, or whether they may be amended further. The latest information we have is that the prime contractor regime, if proclaimed, may be restricted to three industries: Oil & Gas, Construction, and Forestry.

The Summary Offences Procedures Regulations have also been amended, thereby introducing a regime of ticketing for certain occupational health and safety offences under the Occupational Health and Safety Act and Regulations.³ The amount of the penalty for each infraction ranges from $250 to $1,000.⁴ These changes also came into effect on November 7, 2012.

It is our understanding that there may be a grace period in the enforcement of these fines under the Summary Offences Procedures Regulations, and readers are encouraged to contact the Saskatchewan Ministry of Labour Relations and Workplace Safety for more detailed information regarding the timing of enforcement, as it becomes available: www.lrws.gov.sk.ca/ohs.

Lastly, amendments have also been made to the Occupational Health and Safety Regulations regarding late night retail premises.⁵ These are premises that are open between 11:00 p.m. and 6:00 a.m. for the purpose of making retail sales to consumers. Employers will now have to conduct a workplace hazard assessment in accordance with an approved industry standard. They will also have to implement security measures that address cash handling procedures, the use of video cameras, and personal emergency transmitters for workers working alone at night. These amendments will come into force on January 7, 2013.

Additional General Duties on Employers

Employers now have a duty to ensure that workers are trained in all matters necessary to protect their health and safety. Occupational Health officers can require the production of existing records regarding the training of workers on matters related to occupational health and safety. There is an onus on the accused to prove that the training provided met the requirements of the Occupational Health and Safety Act and Regulations.

Employers also have a duty to ensure that all work at the place of employment is sufficiently and competently supervised.

General Duty on Supervisors

A supervisor is now defined in the Occupational Health and Safety Act as “a person who is authorized by an employer to oversee or direct the work of the employer’s worker”.

Supervisors have a new, general duty to ensure, as far as is reasonably practicable, the health and safety at work of all workers who work under the supervisors’ direct supervision and direction. Supervisors have a duty to ensure that they themselves comply with the Act and the Regulation, and that workers under their direction also comply.

Supervisors also now have a duty to ensure, as far as is reasonably practicable, that all workers under the supervisors’ direct oversight and direction are not exposed to harassment at the place of employment.

Harassment is defined in the Occupational Health and Safety Act as any “inappropriate conduct, comment, display, action or gesture by a person” that is either based on race, creed, religion, colour, sex, sexual orientation, marital status, family status, disability, physical size or weight, age, nationality, ancestry or place of origin, or that adversely affects the worker’s psychological or physical well-being, and that the person knows or ought reasonably to know would cause a worker to be humiliated or intimidated.

Expanded Definition of Contractor

Contractors have a general duty, which has not changed, to ensure that every place of employment or worksite where an employer, employer’s worker or self-employed person works, pursuant to a contract between the contractor and that party, is safe for all employers, workers, or self-employed persons at the place of employment (when the place of employment is not under the direct and complete control of the employer or self-employed person under contract with the contractor).

The definition of contractor has been expanded to include not only those contractors who “direct the activities” of one or more employers or self-employed persons, but also to those who “retain” an employer or self-employed person to perform work at a place of employment.⁶

This change to the definition of a contractor now means that the definition in Saskatchewan is much broader than the definition under the Alberta Occupational Health and Safety Act. Previously, the definition in the Alberta and Saskatchewan Acts was relatively similar, but readers who have operations in Saskatchewan now need to appreciate the marked difference between these two definitions.

Additional General Duties on Suppliers

A supplier is defined in the Occupational Health and Safety Act to mean “a person who supplies, sells, offers or exposes for sale, leases, distributes or installs any biological substance or chemical substance or any plant to be used at a place of employment”.

A plant is a broadly defined term in the Occupational Health and Safety Act that includes “any premises, site, land, mine, water, structure, fixture or equipment employed or used in the carrying on of an occupation”.

In prescribed circumstances, suppliers will now have a duty to provide written instructions on the safe use of equipment that is supplied for use in or at a place of employment by workers. In addition, suppliers will have to provide notice when equipment supplied for use at a place of employment does not, or likely will not, comply with a prescribed standard.

We expect that the prescribed circumstances will be defined by a future amendment to the Occupational Health and Safety Regulations.

Additional Director’s Powers Regarding Expert Reports

The Director will now be able to direct employers, contractors, owners or suppliers, at their own expense, to conduct tests and provide a written report when the Director is concerned that the health and safety of a worker is at risk because of a plant’s condition.

The Director will also be able to direct employers or owners, at their own expense, to conduct tests and provide a written report when the Director is concerned that the health and safety of a worker is at risk because of the presence of a substance at work. This term has not been defined.

On-the-Spot Ticketing

Amendments to the Summary Offences Procedure Regulations mean that a long list of offences under the Occupational Health and Safety Act and Regulations will now be punishable by a set fine.

The penalties may be paid without appearing in court,⁷ but for many of the offences, a peace officer may choose to withdraw the specified penalty sum option and require the defendant to appear in court.⁸

Just three examples of the many different offences that will now carry fines are as follows:

1. Failing to develop and implement a written violence policy statement pursuant to section 14 of the Occupational Health and Safety Act: $600
2. Failing to give notice to the division of any incident as specified, pursuant to section 8(1) of the Occupational Health and Safety Regulations: $600
3. Failing to ensure that workers use personal protective equipment, pursuant to section 87(1)(b) of the Occupational Health and Safety Regulations: $1,000

Conclusion

There have been significant changes to the Saskatchewan Occupational Health and Safety Act, and we expect that additional amendments regarding the introduction of a prime contractor regime and a substantial increase in fines for offences may be introduced in the future.

If you would like more information on how these changes will impact your current or planned operations, please consult one of our contacts below.

Notes

1. The Occupational Health and Safety Amendment Act, SS 2012, c 25, amending The Occupational Health and Safety Act, SS 1993, c O-1.1.
2. See Sask OC 563/2012, (2012) (The Occupational Health and Safety Amendment Act, 2012).
3. OC 579/2012, (2012) S Gaz II, 804, Schedule (The Summary Offences Procedure Amendment Regulations, 2012, s 7), amending The Summary Offences Procedure Regulations, 1991, RRS, c S-63.1, Reg 2. Occupational Health and Safety Regulations, 1996, RRS, c. O-1.1, Reg 1. OC 618/96.
4. At the time of writing, the amendments have not been consolidated into the Summary Offences Procedures Regulations, 1991, RRS, c S-63.1, Reg 2. In order to see the tables of infractions and penalties, it is necessary to review the Order in Council 579/2012, above, which attaches the Summary Offences Procedure Amendment Regulations, 2012 as a Schedule to the Order in Council.
5. OC 575/2012, (2012) S Gaz II, 775 (The Occupational Health and Safety Act, 1993).
6. A further amendment states that for the purpose of this section, “a person, partnership or group of persons is considered to be a contractor only if that person, partnership or group of persons knows or ought reasonably to know the provisions of this Act and the regulations respecting the work or the place of employment at the time of retaining the employer or self-employed person to perform work at a place of employment.” See section 3(2) of the Occupational Health and Safety Amendment Act, SS 2012, c 25.
7. The Summary Offences Procedure Regulations, 1991 at s. 8(a).
8. OC 579/2012, (2012) S Gaz II, 804, Schedule (The Summary Offences Procedure Amendment Regulations, 2012, s 7).