Situation that the employer could not have reasonably foreseen - Exceptions - 802-1-IPG-091

Coming into force: September 1, 2019

Note: In accordance with the Interpretation Act, words in the following text importing male persons include female persons.

Guideline

1. Purpose

The purpose of this IPG is to define the expression, "situation that the employer could not have reasonably foreseen" as it appears in sections 169.1, 169.2, 173.01, 173.1 and 174.1 in Division I of Part III of the Canada Labour Code (Code).  This IPG is the first step in the test to determine if the exception applies as follows:

Image of a Flowchart of a situation that the employer could not have reasonably foreseen: description follows
Text description of Situation that the employer could not have reasonably foreseen

The image is a flowchart that shows the interrelation between the four Interpretations, policies and Guidelines (IPGs) about "Imminent or serious", "To the life, health or safety of any person", "Of damage to or loss of property" and "Of serious interference with the operation of the establishment" which must be applied in complementarity.

2. Point

The following provisions have been added to the Canada Labour Code, Part III:

  • breaks - 169.1
  • rest periods - 169.2
  • notice of schedule - exceptions - 173.01
  • work shift changes - exceptions - 173.1 and
  • limited right to refuse overtime to carry out family responsibilities - 174.1

These modifications come into force on September 1, 2019.

The interpretation and application of the expression, "situation that the employer could not have reasonably foreseen" must be standardized nationally.  Therefore, the following two questions will be addressed:

  • what is the meaning of the expression, "situation that the employer could not have reasonably foreseen"?
  • what criteria must an inspector consider when determining whether a "situation could have been reasonably foreseen"?

3. References

In R v. Syncrude, the Court found that while it may be impossible to predict unusual weather events and other factors with certainty, it is not difficult to predict that there will be years when circumstances converge to create such events. So long as the convergence is not a remote possibility, it is foreseeable. R v. Syncrude Canada Ltd, [2010] A.J. No 730, at para. 124. The Court in this case found that the weather was not completely unprecedented and could have been foreseen. Syncrude, para. 125.

Adverse weather conditions are to be expected in a harsh climate like Canada's and extremes of weather should be taken into account in designing, constructing, maintaining, and repairing facilities. R v. MacMillan Bloedel Ltd., [2002] B.C.J. No. 2083, at para 52.

In R v. MacMillan Bloedel Ltd., concerning environmental contamination, the Court noted that the focus of the inquiry must be the foreseeability of the actus reus of the offence charged, not "the general foreseeability of environmental contamination" or "the foreseeability of the specific cause." In that case, the fact that the leak resulted from an unforeseeable cause was decisive in MacMillan’s favour. Even though the company knew that the pipes could leak, because the cause of the leak was unforeseen (and relatively unforeseeable), the company was not deemed in contravention of the Fisheries Act.

R v. Syncrude Canada Ltd, [2010] AJ No 730

R v. MacMillan Bloedel Ltd, [2002] BCJ No 2083

4. Interpretation

"Reasonably foreseeable" can be defined as an estimate, based on reason, common sense, measurement and reflection, that a future fact is likely to occur.

However, "future telling" is not required of an employer when it comes to predicting situations that could potentially arise.  

To determine whether a situation is "reasonably foreseeable", an inspector must consider whether a reasonable person in the same situation could, or could not, have foreseen the situation. In the affirmative, the individual must have acted with diligence, i.e., with the level of care and attention expected when planning appropriate resources and anticipating sufficient means to minimize the impact of any ensuing negative consequences. If despite these efforts, this planning is inadequate to address that situation, depending on the circumstances, the situation may be considered as not foreseeable.

Furthermore, before determining that a situation was reasonably foreseeable and that the employer did take, or should have taken, precautions that a reasonable person would have taken to minimize any impact, an inspector should assess each precaution as a whole. Indeed, what is reasonably foreseeable in one situation may prove the opposite in another, depending on the general context in which the situation occurs. Ensuing consequences of unusual magnitude could also be considered where warranted.

Factors such as recurrence, the number of employees assigned, the size of the company, relevant history, the sector of activity, the location affected by the situation, the specialization of the field and the scope of the consequences are all factors that an inspector can consider to reach a determination.

Examples

  • A telecommunications employer can expect a higher number of outages on its cellular communications network in winter due to the direct effects of cold temperatures and snow on communications equipment. It can therefore anticipate its staffing needs for the period and foresee the labour force required to respond to such outages and maintain its network. On the other hand, the employer cannot foresee the collapse of several of its cellular communications towers following an ice storm.  Such a situation exceeds the limits of what is normally predictable and could not be considered reasonably foreseeable. In such cases, a reasonable person could not have taken steps to limit the impact of the situation.
  • A bank facing a high volume of mortgage applications in the spring could not argue that its situation was not reasonably foreseeable considering that it occurs repeatedly every year. The situation is therefore easily foreseeable and the employer has the opportunity to plan its personnel needs in advance.
  • A road transport employer can easily anticipate that Canadian winter weather conditions will create a need for more employees given that the road system slows down in winter. Such a situation is a certainty and is therefore reasonably foreseeable. In this context, climate conditions themselves are not a defence since they recur year after year.
  • The maintenance unit of an employer operating in the railroad industry is waiting for budget approval to begin certain improvement work on its network. Friday morning, the maintenance manager is informed that management has approved the budgets. The maintenance manager, wishing to start the work as quickly as possible, informed two teams of non-unionized employees in writing that they would have to work night shifts and start the work the next day, Saturday evening. However, they exercise their right to refusal because this new schedule was not given 96 hours in advance, as set out in the Canada Labour Code.  The employer claims this is a situation that it could not reasonably have foreseen. In this scenario, although the manager in question could not predict when budgets would be granted, the decision was made by the company's management, and therefore by the employer.  The conclusion is that the situation is foreseeable and therefor, the employer is obligated to provide the schedule in advance and the employees can exercise their right of refusal.
  • An employer can expect individual absences due to illness over the year. However, an employer cannot foresee an epidemic affecting a large number of its employees at the same time. In these two scenarios of absence from work due to sickness, only the second set of circumstances would represent a situation that was not reasonably foreseeable.
  • An employer's key equipment suddenly fails, significantly affecting all its activities. However, despite repeated warnings, the employer had not properly maintained this equipment.  He then alleges that this is a situation that he could not reasonably have foreseen.  However, although the employer could not predict exactly when the equipment would fail, it was foreseeable that inadequate maintenance would lead to this result.
  • Strikes and lockouts are events that must be planned in advance.  Therefore, they do not constitute situations that an employer cannot reasonably foresee.  However, an illegal strike, initiated at the last minute, without any warning given to the employer, would meet this definition.
  • Finally, situations of "force majeure" (acts of god) are among the most obvious examples. The very nature of these events makes them unforeseeable or impossible to anticipate in terms of the damage they can cause. No employer could foresee the magnitude of consequences resulting from an earthquake, hurricane or tornado. Such events are clearly unforeseeable.
Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: