Occupational Health and Safety – Provincial Jurisdiction Policy 26-005 | Effective Date: January 26, 2017

Purpose              

The purpose of this policy is to provide staff with guidelines on:

Scope

This policy applies to every individual in a place of employment covered by the OHS Act or Regulations.

Statements

1.0 General

Occupational health and safety is a right and a responsibility of every owner, employer, employee, and person at a place of employment subject to the legislative jurisdiction of the Province.

The Constitution Acts broadly define whether a business is provincially or federally regulated. Most provincially regulated businesses fall within the scope of the New Brunswick Occupational Health and Safety Act (OHS Act) and Regulations and in these cases, compliance is enforced by WorkSafeNB.

The OHS Act and Regulations define the rights and responsibilities of every individual at a New Brunswick workplace when the work performed:

  • Is at a place of employment as defined by the OHS Act; and
  • Is under provincial jurisdiction.

When this criteria is not met, the work performed is outside of WorkSafeNB’s jurisdiction. Generally, in these cases, occupational health and safety is regulated by the appropriate federal agency, and is subject to one of the following pieces of federal legislation:

  • Canada Labour Code;
  • Canada Shipping Act;
  • Nuclear Safety and Control Act;
  • Aeronautics Act;
  • Pilotage Act;
  • Department of Transport Act;
  • Railway Safety Act;
  • Canada Oil and Gas Operations Act;
  • Canada-Newfoundland Atlantic Accord Implementation Act; and
  • Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act.

WorkSafeNB usually has very little difficulty determining whether it has jurisdiction at a New Brunswick worksite. However, when there is a question concerning jurisdiction, the criteria outlined in this policy assists in determining if WorkSafeNB can enforce the OHS Act and Regulations at that place of employment.

2.0 Place of Employment

Under the OHS Act, a place of employment is any place where work is carried out by one or more employees. Places of employment include:

  • Buildings, structures, and premises such as offices, retail stores, and bridges;
  • Water, including underwater diving or cabling locations;
  • Land including roads and highways;
  • Project sites and places under construction;
  • Open or underground mines;
  • Cable or free ferries; or
  • Motor vehicles such as cars, trucks, or buses.

However, certain worksites may not meet the definition of place of employment under the OHS Act, and therefore, are outside WorkSafeNB’s jurisdiction. This may include worksites such as planes or helicopters.

3.0 Provincial Jurisdiction

In addition to being a place of employment, WorkSafeNB must also determine that the business is under provincial jurisdiction, i.e., provincially regulated. Generally, provincially regulated businesses include all matters that are within the province, and do not extend outside the province or country.

New Brunswick businesses are constantly emerging and evolving. Therefore, certain kinds of businesses may not be listed within the Constitution Acts as federally or provincially regulated or it may be unclear whether a business is provincially or federally regulated.

WorkSafeNB determines if an industry is provincially regulated by determining the nature of the business’ normal overall activities. This means the activities the business conducts on a regular daily basis, and not activities that may sometimes occur such as when a business is in receivership or while undergoing reorganization.

For example, the business of interprovincial trucking is federally regulated while truck sales are provincially regulated. Therefore, when an interprovincial trucking company is in receivership and is selling its trucks, it does not become a provincially regulated truck retailer, but remains a federally regulated interprovincial trucking company.

In most cases, provincially regulated businesses include:

  • Shipping and transportation within the province;
  • Construction;
  • Manufacturing;
  • Agriculture;
  • Credit unions and insurance (but not banks);
  • Provincial government and crown corporations, health care, and education;
  • Wholesale and retail trade; and
  • Forestry and logging.

On the other hand, federally regulated businesses include matters that require work in multiple provinces or outside of Canada, and matters for the “peace, order, and good government of Canada”. These include:

  • International and interprovincial shipping and transportation;
  • International and interprovincial pipelines;
  • Offshore drilling;
  • Federal public service and Government of Canada crown corporations; and
  • Broadcasting and telecommunications.

Recent decisions have determined that in some situations there may be references in the Constitution Acts to specific industries, however, the jurisdiction of the federal government relates to the “resource” and not the “business” functions. Fishing is an example of where the resource is federally regulated, but the business is provincially regulated.

While the majority of situations are straightforward, WorkSafeNB may encounter complex questions of jurisdiction when:

  • Businesses perform both provincially and federally regulated work (see section 3.1);
  • Businesses operate multiple, separate and distinct divisions or operations (see section 3.2); or
  • Provincially and federally regulated businesses both operate at a place of employment (see section 3.3).

It is important to note that WorkSafeNB must gather and weigh information related to all three situations to determine if provincial jurisdiction exists.

3.1 Businesses Performing Both Provincially and Federally Regulated Work

In certain cases, it may be difficult to determine if a business is provincially regulated or federally regulated when it performs multiple activities. For example, a retailer (provincially regulated activity) may use its own trucks to receive its goods from out-of-province (interprovincial trucking is federally regulated).

It is not the nature of the employee’s individual duties, which dictates jurisdiction, but the nature of the business’ overall activities. Therefore, the retailer is not in the overall business of interprovincial trucking, but rather in the business of retailing. The trucking activity is merely supportive of retailing, and therefore, provincially regulated.

Therefore, the trucking activity is provincially regulated and the truck is considered a place of employment under the New Brunswick OHS Act.

3.2 Multiple Operations

When an employer operates separate businesses, it is possible that one business may be federally regulated while the other may be provincially regulated.

In these situations, WorkSafeNB must first determine if the businesses are truly separate and distinct from each other. In doing so, WorkSafeNB examines:

  • Whether the employees are interchangeable between operations, and
  • If the operations are subject to common management, control or direction (i.e., separate or joint payrolls, use of the same equipment, supplies, or facilities).

If there are separate operations, and one is federally regulated (based on the nature of the operation’s overall activities), the remaining operations may be federally or provincially regulated. Therefore, even if the remaining operation is one that is normally provincially regulated, WorkSafeNB must still determine whether it is provincially regulated in this situation.

To determine this, WorkSafeNB examines how integral or essential the operation is to the federally regulated business. If it is integral or essential to the federally regulated business, then it is also federally regulated. However, if the operation is not integral or essential to the federally regulated business, then the operation is provincially regulated.

An example is an interprovincial railway (federally regulated), which owns a rock quarry operation (provincially regulated) that is devoted exclusively to providing rock for the railway. The Supreme Court of Canada found the quarry to be provincially regulated, because the quarry was not an essential activity to operating a railway.

Another example is a grain mill (federally regulated), which owns a separate large farming operation (provincially regulated). WorkSafeNB has jurisdiction when farming work is performed, because it is not an essential activity to the grain mill activities.

3.3 Place of Employment With Both Provincial and Federal Businesses

Complex issues of jurisdiction may also occur when WorkSafeNB encounters places of employment where both provincially and federally regulated businesses operate.

For example, a contractor is hired to do construction work at an airport. The airport is a place of employment, construction is provincially regulated, and aerospace is federally regulated.

Other situations may also include:

  • A retailer operating a federal operation in part of its store (i.e., a post office or bank);
  • A construction company working for a federal operation (i.e., a nuclear power plant, or an interprovincial road or bridge); and
  • A logging company operating for a First Nations band.

In each of these unique cases, WorkSafeNB determines jurisdiction by considering the combined weight of the following factors:

  • What is the general nature of the employer’s business?
  • What is the nature of the contractual or employment relationship between the parties?
  • What is the degree of importance (exclusivity) of the work (i.e., do they perform that work for other parties)?
  • What is the physical and operational connection between the parties?

3.3.1 General Nature of Employer’s Business

This test examines what kind of work the employer performs, and compares it to the types of work that are listed as federally or provincially regulated in the Constitution Acts. Jurisdiction does not change depending on the task performed at a particular moment.

Therefore, if the general nature of the business is federally regulated, WorkSafeNB does not have jurisdiction even if a provincially regulated task is performed. Similarly, if the general nature of the business is provincially regulated, WorkSafeNB has jurisdiction over the employer and employees.

For example, when a federally regulated business such as a bank employs janitorial staff, these people are federally regulated because the general nature of the business is banking, not janitorial services. However, if the federal business contracts janitorial services from an employer whose business is janitorial services, WorkSafeNB has jurisdiction over the janitor, because the general nature of the business is provincially regulated.

3.3.2 Contractual Relationship Between Provincially and Federally Regulated Parties

This test examines if there is an employment relationship (i.e., one party provides tax slips, performs government deductions, provides benefits, etc.) or if there is an independent contractual relationship between the parties.

If the party performing the work is an independent contractor, who also performs work for provincially regulated companies, this is a sign that WorkSafeNB has jurisdiction over the contractor. However, if one party is employed or solely contracted by the federally regulated party, WorkSafeNB does not have jurisdiction over the safety of the work.

For example, the janitorial staff at the bank have an employment relationship with the bank, and are federally regulated, whereas the independent janitorial company only has a contract with the bank and is provincially regulated.

3.3.3 Degree of Importance of Work

This test examines if the work is performed exclusively for federally regulated parties or for both federally and provincially regulated customers.

If the business performs work for both federally and provincially regulated parties, this indicates a low degree of exclusivity, and suggests WorkSafeNB has jurisdiction over the work. If the business only performs work for federally regulated parties, this suggests WorkSafeNB does not have jurisdiction.

For example, a construction crew (provincially regulated) works on an interprovincial pipeline (federally regulated) for one of its customers. The construction business also performs work for provincially regulated parties. In addition, the initial construction of a new pipeline does not have any operational or functional connection with the core business of operating the pipeline. Therefore, these factors may indicate that WorkSafeNB has jurisdiction over the construction crew.

WorkSafeNB may also gather information that has the opposite effect. For example, a provincially regulated staffing agency provides guards to a federal penitentiary. Because the guards work exclusively for the penitentiary and their function is integral to its operations, the health and safety activities of the guards are federally regulated.

3.3.4 Physical and Operational Connection Between the Parties

This test examines the “physical, operational, and functional connection” between those performing the work and the core or essential operations of the federal business for whom they are working. In determining jurisdiction using this test, WorkSafeNB examines factors such as the significance of the work to the federally regulated party’s overall business.

If there is a low degree of significance, this may indicate that the work is provincially regulated. If there is a high degree of reliance, that is an indication that the work is federally regulated.

A contractor involved in the initial construction of a new pipeline does not have any operational or functional connection with the core business of operating the pipeline. Therefore, the work of the construction crew is considered provincial, and WorkSafeNB would enforce health and safety compliance under the New Brunswick OHS Act.

4.0 WorkSafeNB’s Response

WorkSafeNB provides health and safety services to employers and other places of employment covered under the OHS Act as necessary.

WorkSafeNB may also be notified of health and safety issues through accident reports and complaints. When responding to a report or complaint, WorkSafeNB must determine whether the place of employment is covered under the OHS Act and within WorkSafeNB’s jurisdiction.

If the worksite is a place of employment under the OHS Act, and the work is provincially regulated, then WorkSafeNB responds as appropriate and exercises its legislated powers.

If the worksite is not a place of employment under the OHS Act, or the work is federally regulated, WorkSafeNB contacts the appropriate authorities, as WorkSafeNB may not exercise its powers in these situations. WorkSafeNB may secure the site for a reasonable timeframe until the authorities or their authorized agent arrives. Once the authorities arrive, they are responsible for conducting their own investigation. WorkSafeNB cooperates with the appropriate authorities and, when authorized, shares any relevant information.

WorkSafeNB will not knowingly issue an order or exercise any of its powers under the OHS Act at a place of employment subject to federal jurisdiction.

If jurisdiction cannot be determined immediately, WorkSafeNB assumes jurisdiction over the place of employment and performs all necessary actions, which may include securing the site and investigating the accident until the question of jurisdiction is resolved.

4.1 Other Arrangements

In certain circumstances, even though WorkSafeNB may lack jurisdiction at a place of employment, WorkSafeNB may provide a variety of health and safety services, including enforcement, if an agreement is in place with the employer.

5.0 Specific Circumstances – First Nations Employers

WorkSafeNB uses section 2.0 and 3.0 of this policy to determine if a First Nations employer is provincially regulated.

The OHS Act generally applies to First Nations businesses that operate at places of employment either on or off a First Nations reserve, unless:

  • The operation is a federal work undertaking or business that is within the legislative authority of the Parliament of Canada; or
  • WorkSafeNB considers the activities to be integral to the First Nation’s historical culture and reserve privileges, and therefore subject to federal jurisdiction.

Occupational Health and Safety Act (S.N.B. 1983, c. O-0.2)

1 Definitions of construction, place of employment, and project site, 2(2)

Constitution Acts, 1867 and 1982

91, 92

Case Law

Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749

Alltrans Express Ltd. v. British Columbia (Workers’ Compensation Board), [1988] 1 S.C.R. 897

Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868

The Supreme Court of Canada ruled that provincial occupational health and safety legislation deals with working conditions, labour relations, and the management of an undertaking, and therefore does not apply to federal undertakings.

Montcalm Construction Inc. v. Minimum Wage Commission (1978), 93 D.L.R. (3d) 641 (S.C.C.)

The Supreme Court of Canada ruled that a contractor constructing airport runways on Crown land was under provincial jurisdiction. The Court examined the company’s ordinary business activities, and did not consider what was being built. Furthermore, the fact that the work was performed on Crown lands was irrelevant, as would be the case if the work was performed on a First Nations reserve.

Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115

The Supreme Court of Canada adopted a four-part analysis to determine if work that is normally provincially regulated but performed for a federal undertaking is subject to provincial or federal jurisdiction.

Canadian National Railway Company v. Nor-Min Supplies Ltd, [1977] 1 S.C.R. 322.

The Supreme Court of Canada found that an operation owned by a federal undertaking may be provincially regulated if it is not significantly related to the federal undertaking’s main operations.

Cardinal v. A. -G. Alta, [1974] S.C.R. 695.

An aboriginal living on First Nation land within Alberta sold moose meat to an undercover wildlife officer. A Natural Resources Agreement with the Province permitted the application of provincial legislation to resource management. The Supreme Court ruled that the federal government, which had authority over First Nations, had agreed to the application of the provincial legislation and had the authority to do so.  Provincial legislation was found to have application even on reserved First Nations land. 

Four B Manufacturing Limited v. United Garment Workers of America, [1980] 1 S.C.R. 1031

A First Nation had a shoe manufacturing plant on reserve lands. The employees formed a union and that union was certified under provincial legislation.  The Supreme Court ruled that the business was an ordinary industrial activity coming within provincial labour relations authority. The right of Indian employees to associate for labour relations purposes is not an issue in which Indian status is at stake, nor is such right a necessary incident of Indian status that attracts primary federal jurisdiction over Indians and Indian reserves.

Canadian Western Bank [2007] 2 S.C.R.3, 2007 SCC 22

This case addressed whether or not an insurance business (provincial jurisdiction) by virtue of being part of a bank (federal jurisdiction) should be subject to provincial legislation. The court found that if provincial and federal regulatory provisions are complementary, without conflict or inconsistency that both provisions would apply.

WCB v. Canada, 2007 NWTSC 109

The court found that territorial occupational health and safety laws did not apply to private contractors and their employees working on a federal mine project on federally owned lands. The court considered that the private contractors were an integral part of the overall federal reclamation project, and that territorial statute and regulations applying only to some personnel and only to certain things on the site would lead to a state of administrative confusion.

R. v. Mersey Seafoods Ltd., 2008 NSCA 67

After examining labour relations and the impact of the provincial act on federal legislation, the court found that Nova Scotia’s Occupational Health and Safety Act and Regulations did apply to Mersey Seafoods. Despite the company complying with Transport Canada Regulations, the province also had jurisdiction, as the impact of the OHS Act and Regulations on federal jurisdiction was incidental.

Jim Pattison Enterprises v. Worker’s Compensation Board [2009] BCSC 88

The court found that the core competence of the federal government over navigation and shipping was not impaired by the provincial Occupation Health and Safety Act. The province did have jurisdiction to regulate safety on board fishing vessels, as the federal legislation was directed at ship safety; the provincial legislation was directed at the health and safety of the crew.

Memorandum of Understanding

Respecting the regulation of employment in the Point Lepreau Facility, 2008

Publications

Canadian Health and Safety Law, N.A. Keith, 2004.

 

Construction - includes building, erection, alteration, repair, dismantling, demolition, structural maintenance, painting, moving, land clearing, earth moving, grading, excavating, street and highway building, concreting, equipment installation and alteration and the structural installation of construction components and materials in any form or for any purpose, and any work in connection therewith (OHS Act).

Employee - (a) a person employed at or in a place of employment, or (b) a person at or in a place of employment for any purpose in connection therewith (OHS Act).

Place of employment - any building, structure, premises, water or land where work is carried on by one or more employees, and includes a project site, a mine, a ferry, a train and any vehicle used or likely to be used by an employee (OHS Act).

Project site - any building, structure, premises, water or land where construction is carried on (OHS Act). 

WorkSafeNB – means the Workplace Health, Safety and Compensation Commission or "the Commission" as defined by the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act.

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