Question Period Note: THE DEFINITION OF DANGER AND REFUSALS TO WORK

What is the definition of danger and how does it apply to refusals to work related to the COVID-19 pandemic?

• The Labour Program is responsible for administering and enforcing the Canada Labour Code, Part II - Occupational Health and Safety. The Code applies to federally regulated workplaces to ensure that workers can carry out their work in safe and healthy workplaces, and that they get home safe at the end of the day.
• The purpose of Part II of the Code is to prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses. This would include the hazards posed by exposure to the COVID-19 virus in the workplace.
• One of the fundamental rights of employees in the Code, is the right to refuse dangerous work where they believe that the activity they are being asked to perform poses an imminent or serious danger to themselves or to others.
• In the Code, the definition of danger means “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered”.
• Employers are responsible for protecting the health and safety of their employees while at work, even amidst the current COVID-19 pandemic.
• To assist workplace parties in understanding the requirements and their roles, the Labour Program has made information and links available online for workplaces to use as resources as they respond to the new hazards created by the pandemic.

• The Labour Program remains available to assist workplace parties in the federal jurisdiction to ensure the health and safety of their employees.

• The Labour Program can be reached through its toll-free 1-800 number, to answer stakeholders’ questions and concerns and respond to urgent situations, including refusals to work related to COVID-19.

• The Canada Energy Regulator and Transport Canada conduct compliance and enforcement activities related to Part II of the Code in certain federally regulated sectors.
Background on the amendments to the Definition of Danger and Refusal to Work Process in the Code:
• On October 22, 2013, the Minister of Finance tabled the Economic Action Plan 2013 Act, No. 2 (Bill C-4) which included amendments to Part II of the Code. Bill C-4 received Royal Assent on December 12, 2013. These amendments came into force on October 31, 2014.

• The amendments to Part II of the Code in Bill C-4 included:

a) A revised definition of danger;

The revised definition is consistent with recent jurisprudence. The definition of danger continues to provide protection from all hazards, whether the impact is immediate, such as fall protection, or longer-term, such as an occupational illness. The right of employees to refuse dangerous work is paramount and remains a cornerstone of the legislation.

b) Strengthening of the internal responsibility system in cases of refusals to work; and,

The refusal to work process was amended to clarify and strengthen the roles and responsibilities of the work place parties including the health and safety committee (or representative), in the process.

c) Moving from a system of designation to one of delegation of powers from the Minister.

The amendments provided the Minister of Labour with the powers, duties and functions previously conferred on health and safety officers. The Minister has delegated these authorities, under subsection 140(1) of the Code, to relevant Labour Program officials. The amendments ensure greater oversight and accountability for the enforcement of Part II of the Code.
• When the definition of danger was simplified in 2014, additional changes to the Code were made to strengthen the roles of the employer and employees in the workplace, and how investigations can be conducted.
• These measures have assisted the Labour Program in the investigation of all Refusals to Work, and have been instrumental in managing the historic number of Refusals to Work received since the onset of the Pandemic.
• In particular, the ability to investigate refusals remotely, to group similar refusals into a single investigation, and to refer to previous decisions rendered on other Refusals have been instrumental in the Program ability to be nimble and responsive.
• In 2015, the Liberal Party committed to revisiting the current definition of danger, including consulting with stakeholders.

• The Labour Program held three consultations with 33 stakeholders (including employer and employee representatives) in 2019. No needed changes were identified during these consultations.

• A Head of Compliance and Enforcement was added to the Code in 2021, who is responsible provide oversight to the Labour Program OHS program and activities, manage the delegation of qualified official to administer and conduct the enforcement activities. Officials of the Labour Program are available 365/24/7, as needed.
Background on the pandemic response for Refusals to Work
• On March 11, 2020, COVID-19 was declared a pandemic by the World Health Organization (WHO).

• The Labour Program and Transport Canada have received 127 COVID-19 related refusal to work cases from January 24, 2020 to January 24, 2022; there are currently 7 active cases. The breakdown of decisions rendered is below:

o No Danger: 106
o Danger: 8
o Inadmissible: 2
o Frivolous, vexatious or in bad faith: 3
o Normal condition of employment: 1

• During the same period, the Labour Program and Transport Canada also investigated 69 refusal to work cases unrelated to COVID-19. The Canada Energy Regulator did not receive any Refusal to Work cases work during this timeframe.

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