View cases - Stewart McKelvey

13[35] A so-called general duty provision like s.17 is included in the OHS Act includedbecause it is not possible to foresee every safety-related circumstance which will arisein a workplace. It is not possible to lay out a blueprint for how every employee shouldact in every contingency. In this sense it is akin to section 100 in the Motor Vehicle Actwhich creates a positive duty to drive “in a careful and prudent manner having regard toall the circumstances” and provides an offence for not doing so. While the MVAcontains many rules about what drivers must do (or not do) in particular situations, it isnot possible to foresee all possible situations which may arise on a highway.[36] Leading cases in the Supreme Court (noted below) were largely concerned withthe mens rea requirement for regulatory offences. They made clear that the Crownneed not prove intent in the usual sense. At the same time the Supreme Courteschewed absolute liability, defining and making available in all such cases the defenceof due diligence. However, it appears that the discussion occurred with specificallydefined standards in mind. The decisions refer to a “particular event”. The discussionof proofs and burdens appears to be framed around some specific thing, defined andenshrined in regulation, which a defendant has done or omitted to do. The surroundingcircumstances, in those cases, for those charges, were foreseen and described. Anexample of this, from our jurisdiction, is Eagles (above) where the charges were “failingto ensure that a guardrail was installed at the perimeter or open side of the work areawhere a person was exposed to the hazard of falling” and “failing to ensure that a workplatform was securely fastened in place so as to prevent movement by cleating orwiring, etc.”[37] R. v. City of Sault Ste.Marie [1978] 2 S.C.R. 1299 involved the discharge ofmaterials into a waterway such as might impair the quality of the water, an offenceunder the Ontario Water Resources Commission Act. The relevant section sought toprohibit a specifically defined act; it told municipalities something they must not do.[38] R. v. Wholesale Travel Group Inc. [1991] 3 S.C.R. 154 concerned a breach of aprohibition against misleading advertising, where the company, for the purpose ofpromoting use of a product, made a representation to the public that is false ormisleading in a material respect. Again the regulation set out a certain thing that aperson or company must not do.[39] R. v. Chapin [1979] 2 S.C.R. 121 dealt with a prohibition against huntingmigratory game birds within a certain distance of a baiting station.[40] R. v. MacMillan Bloedel Ltd. 2002 BCCA 510 invoked a charge under federalfisheries legislation outlawing the deposit of a deleterious substance in water frequentedby fish.