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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).