Can provincial OHSA legislation apply across borders? Ontario OHSA protects employee for safety concerns raised while temporarily in B.C., OLRB decides

The question often arises as to whether occupational health and safety legislation in an employee’s home province protects him or her when temporarily working in another province.  According to one recent Ontario Labour Relations Board decision, in some cases the answer can be “yes”.

The employee was hired in Ontario, where he lived, in September 2013.  During his first year of employment, he worked for the employer in both British Columbia and Ontario.  In February 2015, he was temporarily assigned to work in B.C. for about three weeks as a Warehouse Supervisor. While there, he raised a number of safety complaints relating to forklifts (which he said were operated by untrained employees at high speeds), the lack of first aid kits, obstruction of emergency exits, black ice and other hazardous conditions.  The employee said that his efforts to have his concerns dealt with were unsuccessful.

Shortly after returning to Ontario, the company terminated his employment.  The employee then filed a reprisal complaint under the Ontario Occupational Health and Safety Act claiming that he was fired for seeking the enforcement of the Ontario OHSA.  The employer objected, arguing that the safety issues related to compliance with B.C. – not Ontario – safety laws, and that the Ontario OHSA protected only against retaliation for asserting violations of the Ontario OHSA.

The OLRB stated:

“However, Mr. Escudero, as an employee of the responding party permanently based in Ontario, had the right, when he was temporarily assigned by the responding party to a workplace located in Prince George, to require the responding party to ensure that every precaution reasonable in the circumstances had been taken to protect him. That right existed independently of the substance of any applicable health and safety standard established by the legislature of British Columbia.  Simply put, at all times Mr. Escudero had the right to require the responding party to satisfy the statutory obligation established by section 25(2)(h) of the [Ontario OHSA].  Mr. Escudero states that he requested of the responding party that it do so, and that his employment was terminated shortly thereafter.  Mr. Escudero claims that his loss of employment was a consequence of the request he made of the responding party to ensure that it take reasonable precautions to protect him.  If a link between the latter request and the reason for his termination from employment is established, section 50(1) of the Act provides the Board with the authority to remedy the situation.”

As such, the OLRB had authority to adjudicate the reprisal complaint under the Ontario OHSA.

Escudero v Diversified Transportation Ltd./Pacific Western Group of Companies, 2015 CanLII 50878 (ON LRB)


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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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