A year ago in this space we examined amendments made to the Occupiers Liability Act that limited the exposure of government and other parties responsible for resource roads to civil liability related third party use of resource roads. This past fall, the government implemented another measure designed to insulate those responsible for resource roads from liability under the Occupational Health and Safety Regulation ("Regulation") of the Workers Compensation Act ("Act"). The government's cabinet passed an amendment to the Regulation that attempted to clarify some of the confusion that has historically existed with respect to the application of occupational health and safety law in BC to resource roads. Unfortunately, despite this entirely laudable objective, the amendment may have the opposite result.
The essence of the amendment is to establish that, for purposes of the Regulation, a "workplace" does not include a resource road. Among other things, the Regulation imposes obligations upon various actors (for example: owners, employers and prime-contractors) with respect to occupational health and safety at a "workplace." In the past, questions have arisen with respect to whether a resource road is a "workplace" and if so, how a person with responsibility for occupational health and safety at such a workplace meets his/her obligations. At first blush, the amendment appears to resolve these questions in that it does away with any potential liability that a person with occupational health and safety responsibilities for a "workplace" potentially may have on account of a resource road that might otherwise have constituted a "workplace."
However, there are two difficulties, one of a technical legal nature, and another in the nature of unintended consequences. With respect to the former, the term "workplace" is not actually defined in the Regulation - it is defined in the Act itself. Moreover, the Act explicitly states that its definition of "workplace" applies to Part 3 of the Act (the part concerned with occupational health and safety) and "[i]n... the regulations made under this Part." That would include the Regulation. Without getting too arcane about it, the problem is that government cannot modify by regulation what the legislature has done in a statute unless the legislature has given government the authority to do so in the statute itself. The Act does not appear to authorize government to use the Regulation to change a definition created under the Act for purposes of the Regulation itself. Interestingly, the Act does give government the authority to define by Regulation terms used in Part 3 of the Act but that are not defined in Part 3. Of course, this does not apply to "workplace" given that the term is defined in Part 3 of the Act.
While government legal counsel could undoubtedly conjure up potential counter arguments, the absence of any express authority in the Act for this particular amendment to the Regulation raises the spectre of whether the amended definition of "workplace" for purposes of the Regulation is lawfully valid.
In terms of unintended consequences, the effect of the amended definition of "workplace" in the Regulation is that there is one definition of "workplace" under the Act (one that could include resource roads), and a different definition of "workplace" under the Regulation (one that does not include resource roads). Both the Act and the Regulation impose obligations upon owners, employers, prime contractors, and so on, with respect to workplaces. If a resource road was a "workplace" under the Act before the amendment of that term for purposes of the Regulation, nothing has changed - it is still a workplace for purposes of the Act, and all the requirements applicable to a workplace under the Act still apply. Any owner, employer or prime contractor who relies upon its employees or contractors to ensure compliance with the requirements imposed under the Act with respect to resource roads that are workplaces under the Act better hope those employees and contractors understand this very subtle legal distinction, and do not simply assume that the Regulation has altered the definition of "workplace" for all purposes.
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