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Alberta’s new Occupational Health and Safety Act came into force on December 1, 2021.[1]
The new Occupational Health and Safety Act, SA 2020, c O-2.2 (the “New Act”) repeals the former Occupational Health and Safety Act, SA 2017 c O-2.1 (the “Former Act”).
This article summarizes what has changed and what has stayed the same for “owners” under the New Act.
The Definition of an “Owner”
The definition of an “owner” will not change. An “owner” will continue to be defined as follows:
“The person who is registered under the Land Titles Act as the owner of the land on which work is being carried out or may be carried out, or the person who enters into an agreement with the owner to be responsible for meeting the owner’s obligations under this Act, the regulations and the OHS Code, but does not include a person who occupies land or premises used as a private residence unless a business, trade or profession is carried on in that premises.”[2]
The general requirement in the Former Act that if a person has two or more defined functions (for example, as an “owner” and as an “employer”), that person must meet the obligations of all such functions, has not changed. If a person has two or more functions under the New Act “in respect of one work site”, that person must meet the obligations of each function.[3]
How Will Owners’ Obligations Change Under the New Act?
First, the New Act appears to broaden the owner’s obligation to maintain the land, infrastructure and any building or premises on the land in a safe manner.
The owner’s general obligation under the Former Act was as follows – note the emphasis on “control”:
“Every owner shall ensure, as far as it is reasonably practicable to do so, that the land, infrastructure and any building or premises on the land that is under the owner’s control is provided and maintained in a manner that does not endanger the health and safety of workers or any other person.”[4] [emphasis added]
In comparison, the owner’s general obligation under the New Act states the following, which does not refer to “control”:
“Every owner shall ensure, as far as it is reasonably practicable to do so, that the land, infrastructure and any building or premises on the land is provided and maintained in a manner that does not endanger the health and safety of workers or any other person.”[5]
This revised phrasing suggests that the owner’s general obligation, above, is not limited only to the land, infrastructure or premises on the land over which the owner has control.
Second, the New Act uses more general phrasing that may encompass owners, without specifically referring to owners. Although this phrasing may not change owners’ obligations, it does call for a heightened awareness and understanding of what, specifically, owners are responsible for.
For example, the Former Act specifically stated that if an “owner” had been issued an acceptance,[6] the “owner” would have to ensure it was complied with:
“A prime contractor, a contractor, an employer, a self-employed person, a supplier, a service provider, an owner or a group of one or more of these parties who is issued an acceptance shall ensure that the acceptance, including any terms, conditions or requirements on the acceptance, or the original legislative requirement is complied with.”[7]
In contrast, the New Act does not specifically refer to “owners” in the context of acceptances, but rather refers in general terms to a “person” who has been issued an acceptance:
“A person or class of persons who is issued an acceptance shall ensure that the acceptance or the original legislative requirement is complied with.”[8]
This type of general phrasing occurs in several places throughout the New Act. Further examples are provided later in this article. Owners should therefore be aware that they could be included in the phrase “person or class of persons”, depending on the context of certain provisions in the New Act, even though they are not explicitly mentioned.
It is important for owners to have a clear understanding of what their roles and responsibilities are in relation to other parties at the work site, such as prime contractors, and to ensure that they are aware of their responsibilities. Strong, clear drafting of contracts remains an important tool for articulating and assigning occupational health and safety responsibilities at the outset of a project.
Other Obligations of Owners
Some requirements in the Former Act that addressed owners’ obligations have not materially changed, but they are worth reviewing to ensure that owners are aware of and continue to meet their statutory obligations:
- Under section 9(2) of the New Act, an owner “shall ensure that any hazard identified by the owner is communicated to all workers, employers, contracting employers, prime contractors, suppliers and service providers that are conducting work activities, or may be reasonably anticipated to conduct work activities, in relation to the land, infrastructure and any building or premises on the land.”
- Section 55 of the New Act requires that an owner shall post a copy of an order that is issued to it that is “relevant to the work site”, and shall post it in a “conspicuous place at the work site” as soon as the owner receives it, and for as long as the order remains in effect. This can be accomplished by providing the order in electronic format, provided that workers and the joint health and safety committee or health and safety representative (if there is one) “are informed of the orders and have ready access to them.”[9]
- Section 20(6) states that a “person” who is issued an acceptance shall ensure that the acceptance or the original legislative requirement is complied with.
- Section 21(4) states that a “person” who is issued an allowance shall ensure that the allowance or the original legislative requirement is complied with.[10]
- Section 22(4) states that a “person” who is issued an approval shall ensure that the approval or the original legislative requirement is complied with.[11]
- Section 23(3) states that a “person” to whom a recognition applies shall ensure that the recognition or the original legislative requirement is complied with.[12]
A detailed review of policies and contracts as they relate to owners’ obligations is recommended. Miller Thomson LLP is a leader in occupational health and safety law and is available to assist your organization with navigating the impact of the New Act and updating your policies and contracts accordingly.
[1] The Occupational Health and Safety Act, SA 2020, c O-2.2 [“New Act”] was introduced as Schedule 2 of Bill 47, the Ensuring Safety and Cutting Red Tape Act, 2020, which received Royal Assent on December 9, 2020 and became SA 2020, c 32. Section 2 of the Bill reads as follows: “The Occupational Health and Safety Act as set out in Schedule 2 is enacted and may be cited as chapter O-2.2 of the Statutes of Alberta, 2020.” When the New Act came into force, it repealed the former Occupational Health and Safety Act, SA 2017 c O-2.1 [“Former Act”], pursuant to section 77 and 78 of the New Act.
[2] New Act, ibid, s 1(hh); Former Act, ibid, s 1(ll). One small difference in this definition is that under the Former Act, the former OHS Code (cited as the Occupational Health and Safety Code 2009 Order, Alta Reg 87/2009) was not capitalized, but in the New Act, the new OHS Code (cited as the Occupational Health and Safety Code, Alta Reg 191/2021) [“New OHS Code”] is capitalized.
[3] New Act, ibid, s 12(2).
[4] Former Act, supra note 1, s 8(a).
[5] New Act, supra note 1, s 9(1).
[6] Although the term “acceptance” is not defined in either the New Act or the Former Act, the Government of Alberta describes acceptances as follows: “An acceptance allows a work site party to take an alternative approach to a requirement in the OHS Regulation or Code, if the alternative gives equal or greater protection to workers than the original requirements” (available at Government of Alberta, “OHS Acceptances, Approvals and Allowances” (2021), online: Alberta <https://www.alberta.ca/ohs-acceptances-approvals.aspx> [Government of Alberta Webpage]).
[7] Former Act, supra note 1, s 55(5).
[8] New Act, supra note 1, s 20(6).
[9] Ibid, s 55(4).
[10] Although the term “allowance” is not defined in either the New Act or the Former Act, the Government of Alberta describes allowances as follows: “Allowances are added to provide flexibility when it is clear that requirements lag behind advances in technology and processes. They permit an OHS director to allow alternatives that vary from the OHS Code if they do not reduce health and safety. An allowance may be granted to specific industries or all industries” (available on the Government of Alberta Webpage, supra note 6).
[11] Although the term “approval” is not defined in either the New Act or the Former Act, the Government of Alberta describes approvals as follows: “Specific provisions of OHS laws require work site parties to apply for an approval from an OHS director. For example, you may need an approval to use a certain equipment or standard, develop or use a particular process, or offer a type of course or training” (available on the Government of Alberta Webpage, supra note 6). The “specific provisions” referred to above regarding which activities and equipment require an approval are contained in the New OHS Code, supra note 2.
[12] Although the term “recognition” is not defined in either the New Act or the Former Act, the provision itself is self-explanatory: “a Director may issue a recognition of an alternate standard, personal protective equipment or equipment that complies with the requirements in another Canadian jurisdiction or the requirements under an agreement entered into between Alberta and another Canadian jurisdiction, if, in the Director’s opinion, such an alternate standard, personal protective equipment or equipment is appropriate to the Alberta conditions” (see New Act, supra note 1, s 23(1)). One notable difference is that the New Act changed the language of this section to refer to a recognition as such, as opposed to the Former Act, which referred to recognitions as “approvals” (see Former Act, supra note 1, s 57).
