OLRB clarifies the scope of the precautionary principle in the context of the pandemic
March 22, 2021
The Ontario Labour Relations Board has clarified the scope of the precautionary principle, both generally and in the context of the COVID-19 pandemic, in its recent decision Liquor Control Board of Ontario v Ontario Public Service Employees Union, 2021 CanLII 15607 (“LCBO“). In this decision, the Board reaffirmed that compliance with the precautionary principle may require employers to take measures that go beyond what is required by the public health guidelines or regulatory standards concerning an occupational hazard.
In LCBO, the employer applied for the suspension of orders made by an inspector directing the LCBO to take certain measures to mitigate the risk of the spread of COVID-19 in the cafeteria at one of its warehouses. The employer argued that the measures ordered by the inspector exceeded the prevailing public health guidelines, and there was no evidence of a gap in its existing safety measures that would justify the additional precautions required by the orders. However, the Board refused to suspend the inspector’s orders, and took the opportunity to clarify its interpretation of the precautionary principle, particularly in the context of the pandemic.
The precautionary principle was discussed in Justice Archie Campbell’s seminal report Spring of Fear, which dealt with the health and safety issues arising out of the SARS crisis in the early 2000s. As Justice Campbell stated in the report, “Worker safety relies on the precautionary principle that reasonable action to reduce risk should not await scientific certainty.”
This principle is reflected in section 25(2)(h) of the Occupational Health and Safety Act, which requires employers to “take every precaution reasonable in the circumstances for the protection of a worker.” The scope of this statutory requirement is broad but not unlimited; employers are not required to take every possible precaution, only every reasonable precaution in the circumstances. Employers have often argued that precautions that would exceed the prevailing public health guidelines or regulations are inherently unreasonable and/or would not be required by the precautionary principle. The Board in LCBO disagreed, stating:
The statutory requirement to take all reasonable precautions necessary in the circumstances for the protection of workers may require measures greater than those set out in any recommendation, statute, or regulation.
The Board also reaffirmed that measures may be reasonable in the circumstances even if the existence of hazardous conditions, such as the risk of the spread of the virus in the warehouse cafeteria, cannot be established with scientific certainty. Indeed, scientific uncertainty about the hazard could require employers to take greater, not lesser, measures in order to comply with the precautionary principle. According to the Board:
The greater the risk to workers and occupants of a workplace of acquiring a serious disease, and the greater the uncertainty of the science surrounding the spread and the consequences of the spread, the more cautious the Board should be in suspending an Order.
To illustrate this point, the Board in LCBO took judicial notice of the confirmed cases in Ontario of variants of the virus that are scientifically understood, not yet proven, to be more transmissible and/or deadlier than the original strain. The Board said that, in accordance with the precautionary principle, it would have been prepared to rely on the unproven but serious risks posed by the variants of the virus, had it been necessary to do so in order to decline to suspend the inspector’s orders.