Situation that the employer could not have reasonably foreseen - Exceptions - IPG-091
Effective date: September 1, 2019
Revised date: January 9, 2023
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Subject
This Interpretations, Policies and Guidelines (IPG) intends to define the expression, "situation that the employer could not have reasonably foreseen". This expression appears in sections 169.1, 169.2, 173.01, 173.1 and 174.1 under Division I of Part III of the Canada Labour Code (Code).
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.
Note: “employees” also includes “interns”. Student interns are not subject to the interpretation of this IPG.
This IPG is the first step in the test to determine if the exception applies as follows:
Text description of Situation that the employer could not have reasonably foreseen
The image is a flowchart that shows the interrelation between the 4 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.
Issue
The following provisions have been added to the Code:
- break - 169.1
- rest period - 169.2
- notice — work schedule - 173.01
- shift changes - 173.1 and
- right to refuse - 174.1
The interpretation and application of the expression, "situation that the employer could not have reasonably foreseen" must be standardized nationally. This IPG addresses the following:
- the meaning of the expression, "situation that the employer could not have reasonably foreseen" in relation to the above-mentioned sections
- criteria used to determine whether a situation could have been reasonably foreseen
References
In R v. Syncrude, the Court found that it is impossible to predict unusual weather events and other factors with certainty. However, 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.
Individuals should expect adverse weather conditions in harsh climates like Canada. Individuals should take extremes of weather 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. It should not focus on "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, the company was not deemed in contravention of the Fisheries Act. This is because the cause of the leak was unforeseen (and relatively unforeseeable).
Interpretation
This IPG defines "Reasonably foreseeable" 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", it must be considered whether a reasonable person in the same situation could have foreseen the situation. For example, the individual acted with the level of care and attention expected when planning appropriate resources. He anticipated sufficient means to minimize the impact of any ensuing negative consequences. The situation may be considered as not foreseeable in certain circumstances. For example, if despite all efforts, the planning is inadequate to address the situation.
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, each precaution should be assessed 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.
A number of factors can be considered to reach a determination, 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
Examples of “situation that the employer could not have reasonably foreseen”
Example 1
A telecommunications employer can expect a higher number of outages on its cellular communications network in winter. This is due to the direct effects of cold temperatures and snow on communications equipment. It can therefore anticipate its staffing needs for the period. It can also 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.
Example 2
A bank facing a high volume of mortgage applications in the spring could not argue that its situation was not reasonably foreseeable. Since it occurs repeatedly every year, the situation is easily foreseeable. Therefore, the employer has the opportunity to plan its personnel needs in advance.
Example 3
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. Therefore, it is reasonably foreseeable. In this context, climate conditions themselves are not a defence since they recur year after year.
Example 4
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 informed 2 teams of non-unionized employees in writing that they would have to work night shifts. He also informed them that they would have to 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 Code. The employer claims this is a situation that could not reasonably have been foreseen. In this scenario, although the manager could not predict when the company would grant the budgets, the company's management made this decision. Therefore, the decision was made by the employer and the situation was foreseeable. The employer was obligated to provide the schedule in advance and the employees, in this case, can exercise their right of refusal.
Example 5
An employer can expect individual absences due to illness over the year. These situations are reasonably foreseeable. However, an employer cannot foresee an epidemic affecting a large number of its employees at the same time. This type of scenario of absence from work due to sickness is not reasonably foreseeable.
Example 6
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.
Example 7
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.
Example 8
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.
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