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

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:

Note: This IPG does not apply to classes of employees who were granted an exemption and/or modification to specific provisions as per the Exemptions from and Modifications to Hours of Work Provisions Regulations.

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 2 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.