Changes to Investigative Powers under Alberta's new Occupational Health and Safety Act 

18 June 2018

On June 1, 2018, amendments to Alberta's Occupational Health and Safety Act (the "New Act") came into force, significantly expanding the nature of the health and safety obligations owed by employers and businesses in Alberta.

This article focuses on one of the areas in which changes have been made: the expansion of obligations to report incidents and of the government's authority in response. Please see additional articles, which address the changes to day-to-day operations of an employer to address safety at a work site, and the expansion of obligations to report incidents and of the government's authority in response.

Investigative Powers

Serious Injuries and Incidents

The requirements for incident reporting under the New Act have been rewritten considerably, and the following only covers some of the changes.

The New Act clarifies that an injury or accident resulting in the death of a worker must be reported, which clarifies some of the confusion over whether the death non-workers or members of the public had to be reported. Further, previously, an injury or accident that resulted in a worker's admission to a hospital for more than 2 days had to be reported to a Director of Inspection. Now, an injury or incident that results in a worker being admitted to a hospital, regardless of how long the admission, must be reported. This will include every incident for which a worker is admitted to a hospital, but will exclude a worker being assessed in an emergency room or urgent care centre without being admitted.

The New Act also introduces a significant list of events that must be reported if they occur at a mine or a mine site, both defined terms in the New Act. Further, every injury or incident that has the potential of causing serious injury to a person (near misses) must be reported to a Director of Inspection. However, the Act does not define a serious injury.

Also, for every serious injury or accident and for every near miss, the prime contractor or, if there is no prime contractor, the employer, must provide a report to a Director of Inspection, the committee or representative or, if there is no committee or representative, make it available to the workers. The report must outline the circumstances of the injury or incident and the corrective action taken. The investigation must be conducted with the participation of the committee or representative. The obligation to provide a copy of the investigation report to a Director of Inspection is different from the prior Act, which only required a report to be prepared and make it readily available if requested by an investigating officer (which obligation also exists under the New Act).

Stop Work Orders

The prior Act provided that if an officer was of the opinion that a danger to the health or safety of a worker existed, the officer could order the work be stopped, any worker or other person present to leave the work site, and other measures. The New Act expands this power by allowing an officer to do one or more of the following if the officer is of the opinion that activities that involve, or are likely to involve, a danger to the health and safety of workers are being carried on, or are about to be carried on, by workers of the same employer at more than one work site: the cessation of those activities; all or part of any of the work sites be vacated; no resumption of those activities be permitted at any of the worksites; and the employer take measures specified by the officer. The most significant of these changes is the ability for an officer to expand the scope of the stop work order following an incident to all of an employer's work sites, not just the one where the incident occurred. The New Act also provides that when a stop work order is in place, any worker directly affected by the order is entitled to the same wages and benefits that the worker would have received had the stop work order not been issued, and the worker may be assigned to alternate work.

Stop Use Orders

The prior Act allowed an officer to order a worker to stop using or to refrain from using a tool, appliance or equipment the officer determined was not in safe operating condition or did not comply with the code. The New Act's provision is broader. The officer may order the prime contractor, contractor, owner, employer, supervisor, self-employed person or worker to take any measures to remove the source of the danger or to protect any person from the danger. While a stop use order is issued, any worker directly affected by the order is entitled to the same wages and benefits the worker would have received had the stop work order not been issued, and the employer may reassign the worker to alternate work.

Reviews and Appeals

The New Act completely changes the procedures for reviews and appeals of orders and decisions. In some cases, a party can request a "review" be conducted by a Director of Inspection. However, the Director has the discretion to refer the matter to the "appeal body", which is no longer the Alberta OHS Council but the Labour Relations Board. Certain other matters may be appealed directly to the Labour Relations Board.

Publication of Information

The New Act provides that the Minister will publish documents and information arising from the administration of the Act, regulations and code, including: any available data on disabling injury claims, disabling injury rates, person years of work, lost time claims, lost time claims rates, motor vehicle fatalities, work site incident fatalities and occupational disease fatalities of employers and self-employed persons; any orders issued to prime contractors, contractors, suppliers, service providers, employers and self-employed persons; administrative penalties issued to any person; tickets issued to employers, but not those issued to workers; subject to the Freedom of Information and Protection of Privacy Act, investigation reports completed by an officer; acceptances issued to any person; and approvals issued to any person.

Now that the New Act is in force, employers should dedicate significant time and resources to ensure all of the significant changes are implemented within their health and safety systems. The changes should not be underestimated.

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