In the eyes of many companies, the determination of whether they are "federally regulated" or "provincially regulated" is a relatively straightforward one. But when it comes to Occupational Health and Safety matters, should it be? Ultimately, what a company (or even the regulator) "thinks" it is matters far less than what the facts and the law "say" it is.

Case in point: We recently represented a client that suffered a workplace incident. Although provincial workplace health and safety took conduct of the subsequent investigation and ultimately recommended charges under the provincial Occupational Health & Safety Act, our own investigation revealed that the company was regularly and continuously crossing provincial boundaries in the course of its operations. Even though it wasn't a "transportation company" in the traditional sense, the fact that the company was transporting its own equipment meant that the company was, at law, a "federally regulated transportation undertaking". As a result, we were able to provide a convincing argument to the Crown that the charges ought to be withdrawn, since it was the Canada Labour Code Part II that applied to the company, and not the provincial Occupational Health & Safety Act. Since the federal limitation period for laying charges had already expired, the matter simply came to an end, and the company not required to present it's due diligence defence (which, in the opinion of the writer, would have resulted in a "not guilty" verdict in any event).

What's the lesson to be learned? Jurisdiction isn't always straightforward. Even in situations where the regulator "takes" jurisdiction, that doesn't necessarily mean it was entitled to do so. If you're a company that's regularly and continuously crossing borders, give some thought to whether you are in fact what you say you are. You don't need to be a "transportation company" to be a federally regulated "transportation undertaking". To borrow a quote from Batman Begins - it's not what you are underneath, but what you do that defines you.