______________________________________________________________________________<strong>Stewart</strong> <strong>McKelvey</strong>Doing Business in Atlantic Canadarequirement. For a practice to be considered to be based on a bona fide occupational requirement, theemployer must establish that accommodation of the needs of the individual affected would impose unduehardship on the employer who would have to accommodate those needs, considering health, safety, andcost. Other circumstances where there will not be discriminatory practice are:• the employment of an individual is refused or terminated because that individual has not reachedthe minimum age, or has reached the maximum age, which applies to that employment by law;• an individual’s employment is terminated because that individual has reached the normal age ofretirement for employees working in positions similar to the position of that individual;• the terms and conditions of any pension fund or plan established by an employer provide for thecompulsory vesting or locking in of pension contributions at a fixed or determinable age;• an individual is discriminated against on a prohibited ground of discrimination that is prescribedby guidelines issued by the Canadian Human Rights Commission to be reasonable;• an employer grants a female employee special leave or benefits in connection with pregnancy orchild birth or grants employees special leave or benefits to assist them in the care of theirchildren; and• where an individual is denied any goods, services, facilities or accommodation or access theretoor occupancy of any commercial premises or residential accommodation or is a victim of anyadverse differentiation, and there is bona fide justification for that denial or differentiation.The Act also prohibits an employer from using or circulating any form of application for employment orpublishing any advertisement in connection with employment or perspective employment that expressesor implies any limitation, specification or preference based on a prohibited ground of discrimination.The Canadian Human Rights Act also prohibits an employer from establishing or pursuing a policy orpractice or entering into an agreement affecting recruitment, referral, hiring, promotion, training,apprenticeship, transfer or any other matter relating to employment or prospective employment, thatdeprives an individual of any employment opportunities on a prohibited ground of discrimination.Occupational Health and SafetyThe obligations on a federally regulated employer to ensure the health and safety of employees and thepublic are set out in Part II of the CLC. The duty imposed on employers is to “ensure that the health andsafety at work of every person employed by the employer is protected.” A breach of this duty triggers astrict liability offence. A strict liability offence is proved upon establishing beyond a reasonable doubt thatthe prohibited act was committed by the accused. There is no need for the Crown to prove that theaccused intended to commit the act.Once the strict liability offence has been proven, the onus shifts to the accused to show on a balance ofprobabilities that it showed due diligence or took reasonable care. If the accused can prove that due careand diligence was taken to avoid the contravention, the accused will be acquitted of the offence.“Due care and diligence” means that the employer did everything that a reasonable person should do toprevent the incident. Obviously the employer must demonstrate that the due diligence components werein place before the incident.The following persons are guilty of an offence under Part II of the CLC, if they direct, authorize, assent to,acquiesce in or participate in the commission of any of the offences under Part II:• any officer, director, agent or mandatory of the corporation;• any senior official in the department or portion of the public service; orPage 64
______________________________________________________________________________<strong>Stewart</strong> <strong>McKelvey</strong>Doing Business in Atlantic Canada• any other person exercising managerial or supervisory functions in that corporation, departmentor portion of the public service.Any person who contravenes a provision of Part II may be punished by a fine of up to $1-million and/ortwo years in prison.Criminal Code ProvisionsThe Criminal Code was recently revised to include new liabilities for corporations for failure to ensure andmaintain certain occupational health and safety duties.The Criminal Code establishes a legal duty to take “reasonable steps” and applies to both individuals andorganizations. The occupational health and safety legal duty is imposed on “everyone” who undertakes,or has the authority, to direct how another person does work or performs a task. The legal duty is thatsuch persons must take reasonable steps to prevent bodily harm to the person, or any other person, towhom that work or task is directed.Individual ObligationsOccupational health and safety criminal negligence for individuals is established where the individual, inundertaking to direct how another person does work:• contravenes his or her duty to take “reasonable steps” to prevent bodily harm, and• shows wanton or reckless disregard for the lives or safety of others.Organization ObligationsThe test for determining criminal negligence for organizations applies the test for criminal negligence ofindividuals to the actions of the corporation’s employees and then adds a further test to determine if asenior officer should have taken reasonable steps to prevent those actions (i.e. it is necessary todetermine if the senior officer responsible, or senior officers collectively, departed markedly from thestandard of care that could be expected.)Due DiligenceThe health and safety obligations in the Criminal Code constitute criminal offences and as such carry withthem the requirement that each element of the offence be proven beyond a reasonable doubt. Unliketraditional occupational health and safety violations which are strict liability offences (requiring only thatthe unlawful act be proven and allowing for the defence of due diligence), the new occupational healthand safety negligence offence is not directly impacted by traditional due diligence defence. However, theconcept of due diligence is clearly subsumed in the standards as well as in the “party to” offencesprovisions. Considering the subtle reliance on due diligence like principles contained in the provisions, itwould appear that the due diligence standard may in fact apply by analogy.Due diligence is defined as whether the organization or individual can establish it took all reasonable careby:• establishing proper systems to prevent the commission of the offence; and• taking reasonable steps to ensure effective operation of the systems.The recent Criminal Code amendments apply to every person who directs how others do work or hasauthority to direct how work is done. This may include walking bosses to senior executives. Theamendments provide that any “organization”, “representative”, or “senior officer” has a legal duty.Page 65