Canada Gazette, Part I, Volume 158, Number 17: New Brunswick Nuclear Power Plant Exclusion Regulations (Parts I, II and III of the Canada Labour Code and the Non-smokers’ Health Act)

April 27, 2024

Statutory authorities
Canada Labour Code
Non-smokers’ Health Act

Sponsoring department
Department of Employment and Social Development

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the regulations.)

Issues

There are six regulations and one order related to nuclear power plants and uranium mines under the Canada Labour Code (the Code) that exclude these facilities from the application of the Code in favour of the relevant provincial legislation in Ontario, Saskatchewan, and New Brunswick. The current regulations contain outdated and inconsistent definitions and references.

Nuclear power plants in Canada are required to employ their own dedicated on-site facility fire brigade (FFB) for fire protection services. There is a lack of consistency between Ontario and New Brunswick regarding the rights of FFB members working at nuclear power plants.

Background

Nuclear power plants

Since 1990, Canada has had four operational nuclear power plants (three in Ontario and one in New Brunswick). These facilities are licensed and operate under rules and regulations set by the Canadian Nuclear Safety Commission (CNSC); however, the CNSC is not responsible for labour relations, occupational health and safety, or other labour standards in respect of nuclear power plants.

Originally, the nuclear power plants were owned and operated by provincial corporations, and therefore provincial labour regulations were applied. However, it was later determined that nuclear power plants are federally regulated and are therefore subject to the Code, as confirmed by the 1993 Supreme Court of Canada (SCC) decision:footnote 1 “The Canada Labour Code applies to employees of Ontario Hydro who are employed on or in connection with those nuclear facilities that come under s. 18 of the Atomic Energy Control Act.” The Code also applies to the nuclear power plant in New Brunswick.

To ensure the existing provisions in provincial legislation and regulations continued to apply, it was decided to establish four federal regulations, effective in 1998, to exclude nuclear power plants from the application of the Code. This decision was made following consultations with stakeholders and the provinces, as transitioning nuclear power plants to the Code and deploying new resources to replace the provincial program would have had significant financial and administrative impacts. Similarly, a set of regulations was also established under the Non-smokers’ Health Act footnote 2 to exclude these workplaces from federal smoking legislation in favour of provincial legislation.

A total of five federal regulations apply to nuclear power plants and exclude them from particular elements of the Code:

The four nuclear exclusion regulations for Ontario contain outdated and inconsistent definitions and references. The definition of “nuclear facility” in the current Ontario nuclear exclusion regulations permanently ties the application of the regulations to Ontario Hydro ownership. In 1999, Ontario Hydro ceased operations and was replaced by several companies. Currently, two organizations operate nuclear power plants in Ontario: Bruce Power and Ontario Power Generation (OPG). The facilities operated by Bruce Power and OPG were once owned by Ontario Hydro; thus, they are currently covered by the existing regulations. However, the current regulations would not apply to any other facility that may be opened and operated in the province.

The nuclear exclusion set of regulations for New Brunswick permanently and exclusively ties its application to the Point Lepreau facility, which means that the set of regulations would not apply to any other facility that may operate in the province. Additionally, some provisions are out of date; for example, the provisions related to construction activity are no longer required given the SCC decisionsfootnote 3 that determined construction is a provincial matter.

For some workers, danger is a normal condition of employment, including, but not limited to, police officers, firefighters, and paramedics. Under New Brunswick’s Occupational Health and Safety Act, all employees are limited in their right to refuse dangerous work when it is due to a normal condition of employment. However, the Ontario Occupational Health and Safety Act (Ontario OHSA) is not entirely aligned with this limitation; under the Ontario OHSA, only specific employees are limited in their right to refuse dangerous work, which does not include FFB members or police officers at nuclear power plants. Thus, employees working at the nuclear power plant in New Brunswick have different rights than employees working at nuclear power plants in Ontario. In 2007, the Ontario nuclear exclusion regulations were amended to add provisions to broaden the application of the Ontario OSHA to incorporate police officers at nuclear power plants, limiting their right to refuse dangerous work due to the nature of their position. In 2016, a Chief Arbitrator in Ontario concluded that the rights of FFB members also needed to be clarified through legislation.

Since 2011, stakeholders, including Bruce Power, OPG, and the Power Workers’ Union (the union representing FFB members in Ontario), have identified problems with the Ontario nuclear exclusion regulations. OPG requested that the power plant definition be broadened to include all current and potential nuclear power plants in Ontario, since Ontario Hydro no longer exists. Also, both Bruce Power and the Power Workers’ Union have identified that the right to refuse dangerous work should be limited and requested that the regulations be amended to harmonize the provisions for FFB members across provinces, to create equal responsibilities for these members at similar facilities, in the same industry, across the country.

The current proposal would create a provision to limit the right to refuse dangerous work that is a normal condition of employment for FFB members within the federal exclusion regulations for Ontario. This provision will align with the provision that was included for police officers in 2007, and the rights of FFB members working at nuclear power plants in Canada will be harmonized.

Uranium mines

There is currently one set of regulations and one order excluding uranium mines from the application of the Code provisions in favour of provincial legislation and regulations in Saskatchewan and Ontario:

There are currently five uranium mines in Canada, and all are in Saskatchewan. The Saskatchewan Uranium Mines and Mills Exclusion Regulations, published in 2001, contain outdated references to provincial legislation and regulations that have been repealed or replaced.

There are no active uranium mines in Ontario, which renders the Uranium Mines (Ontario) Employment Exclusion Order, published in 1987, out of date.

Objective

The objective of the proposal is to harmonize the rights of FFB members in nuclear power plants across Canada, allow the application of the exclusion regulations to potential future nuclear power plants, and modernize outdated references in the regulations and orders related to nuclear power plants and uranium mines under the Code.

Description

Nuclear power plants

This regulatory proposal would repeal the four existing nuclear exclusion regulations related to Ontario and replace them with one new proposed set of regulations [the Ontario Nuclear Power Plant Exclusion Regulations (Parts I, II and III of the Canada Labour Code and the Non-smokers’ Health Act)]. The new proposed set of regulations would update definitions and titles, and replace outdated references to provincial industrial relations, occupational health and safety, labour standards, and smoke-free workplace legislation. This proposal would also remove outdated provisions that were originally included to facilitate the transition between the Code and provincial legislation. The new set of regulations would change the Interpretation section’s definition of “nuclear facility” to “nuclear power plant” in order to have a harmonized definition across Canada and would remove the reference to Ontario Hydro ownership, and the terminology would be aligned with that used by the CNSC. Additionally, this proposal would harmonize the right to refuse dangerous work for FFB members working in nuclear power plants across Canada by including a definition of “facility fire brigade,” in a similar fashion to the previous amendment for police officers.

This regulatory proposal would also repeal the existing nuclear exclusion set of regulations related to New Brunswick and replace it with one new proposed set of regulation [the New Brunswick Nuclear Power Plant Exclusion Regulations (Parts I, II and III of the Canada Labour Code and the Non-smokers’ Health Act)]. The new set of regulations would change the Interpretation section’s definition of “Point Lepreau facility” to “nuclear power plant” to have a harmonized definition across Canada and remove the reference to “Point Lepreau.” It would also remove provisions related to construction as they are no longer relevant. Other changes to the existing provisions include replacing references to current provincial industrial relations, occupational health and safety, labour standards, and smoke-free workplace legislation and removing the references to the repealed regulations.

Uranium mines

Within the existing Saskatchewan exclusion set of regulations, this regulatory proposal would modify definitions, titles, and references to provincial legislation and regulations related to employment standards in connection to a uranium mine or mill, which have been repealed, and would replace them with current references.

In addition, this regulatory proposal would repeal the Uranium Mines (Ontario) Employment Exclusion Order.

Regulatory development

Consultation

The proposed amendments would impact a limited number of employers and employee groups. In response to requests received from Bruce Power, OPG, and the Power Workers’ Union, two virtual consultation sessions were held in August 2019 with stakeholders, including employers, unions, and other federal government organizations.

Following the 2019 consultations, the Labour Program has had ongoing conversations three to four times a year with the two Ontario employers, Bruce Power and OPG, to discuss the direction of this proposal. The Labour Program has also consulted with the CNSC and the Ontario Ministry of Labour, Immigration, Training and Skills Development.

In September 2023, the Labour Program held a virtual consultation session with stakeholders, which comprised a presentation with discussion questions. Representatives from the following organizations were present:

Nuclear power plants

During the September 2023 consultations, several questions were raised by stakeholders, specifically concerning the definition of dangerous work. The Labour Program clarified and explained that, with the proposed amendments, the FFB members would have the limited right to refuse dangerous work when it is considered a normal condition of employment in both Ontario and New Brunswick. The representative for the Power Workers’ Union stated that they supported these changes and acknowledged that some danger is an inherent part of the job for an FFB member. Following the consultation session, the Power Workers’ Union also provided written confirmation that it supported the intent of the proposed amendments.

Uranium mines

During the September 2023 consultations, stakeholders questioned if there was any new requirement with the proposed amendments for uranium mines. The Labour Program confirmed that the proposed amendments do not increase nor decrease the requirements for uranium mines, but rather administratively update the definitions and titles, and replace the references in the Saskatchewan exclusion regulations.

Another stakeholder questioned the rationale for repealing the Uranium Mines (Ontario) Employment Exclusion Order. The Labour Program reiterated that, due to the outdated nature of that Order and the lack of active uranium mines in Ontario, the benefits of repealing the Order altogether outweigh any benefits of modernizing it.

General

Because the issues were first identified by stakeholders, and there has been ongoing collaboration with stakeholders throughout the development process, responses from those who attended the virtual consultation in September 2023 were limited. However, all the employers, union representatives, and provincial representatives confirmed that they appreciate and support the proposed scope and the updates and have requested time to provide comments. The 30-day comment period following the prepublication of this proposal will allow time for feedback to be provided.

Due to the limited number of workplaces and stakeholders directly affected by this proposal, no Indigenous organizations were invited to the consultation. There are no additional workplaces or stakeholders that would be directly affected by these proposed amendments at this time.

Modern treaty obligations and Indigenous engagement and consultation

The Labour Program conducted the assessment of modern treaty implications and found that the amendments would not disproportionately impact modern treaty holders. There are currently no nuclear power plants or uranium mines owned or operated by modern treaty holders or Indigenous organizations.

Instrument choice

As there is an existing regulatory framework that applies to exclude employees in nuclear power plants from the application of the Code and the Non-smokers’ Health Act, changes to references and definitions, as well as the repeal of provisions, could only be accomplished through the regulatory process. Therefore, no other instruments were considered.

Regulatory analysis

This section presents an analysis of the anticipated incremental impacts of the proposed amendments, with an emphasis on the provision to limit the option to refuse dangerous work for FFB members in Ontario.

In the baseline, FFB members in Ontario can refuse work without limitation. For example, they could refuse fighting a fire because fighting a fire is dangerous or because the employer did not provide protective equipment.

Under the regulatory scenario, the right of refusal is limited. FFB members in Ontario would not be permitted to refuse to work simply on the grounds that fighting a fire is dangerous, as this is considered a normal condition of their employment. However, FFB members would still be permitted to refuse dangerous work that is not a normal condition of employment, such as fighting a fire without proper personal protective equipment.

The province of Ontario has three nuclear power plants (Bruce Power, OPG Pickering, OPG Darlington). There are approximately 230 FFB members working at these facilities.

Benefits and costs

Costs
Nuclear power plants

The limitation of the right to refuse dangerous work by FFB members at Ontario nuclear power plants would be a cost to FFB members in Ontario, as they would no longer have the option to refuse work as a normal condition of employment.

The other changes to the regulations are not expected to impose incremental costs:

Uranium mines

There would be no anticipated incremental costs to the Government of Canada, consumers of nuclear energy, or Canadians resulting from any of the provisions of the proposed regulations because

Benefits

The proposed amendments would improve clarity and consistency at nuclear power plants across Canada by ensuring the most updated references to the provincial legislation.

Small business lens

Analysis under the small business lens concluded that the proposed amendments would not impact Canadian small businesses.

One-for-one rule

The proposed amendments would not result in any increase or decrease in the administrative burden on business. However, the initiative would repeal the four existing Ontario regulations and replace them with one new, comprehensive set of regulations. The existing New Brunswick set of regulations will be repealed and replaced for a net zero change. In addition, the Uranium Mines (Ontario) Employment Exclusion Order would be repealed. Overall, this proposal would result in a net reduction of four regulations counted under the one-for-one rule.

Regulatory cooperation and alignment

The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum.

Alignment with provinces, territories, and other federal departments

The CNSC provided expert advice to the Labour Program throughout the development of this initiative. Efforts were made to align terminology with that of the regulations administered by the CNSC and other established documents used by the nuclear power industry.

The Labour Program worked with the Ontario Ministry of Labour, Immigration, Training and Skills Development and consensus was reached for the proposed amendment to the Ontario exclusion regulations to clarify the limited right to refuse dangerous work by FFB members.

Under New Brunswick’s Occupational Health and Safety Act, FFB members are already limited in their right to refuse dangerous work due to a normal condition of employment, as confirmed by provincial representatives. The Labour Program also engaged with representatives from the provinces of Ontario, New Brunswick, and Saskatchewan to discuss changes to the regulations regarding nuclear power plants and uranium mines. The proposed amendments would harmonize the rights of FFB members and ensure consistency in definitions, titles, and references in the nuclear exclusion regulations across Canada.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted and it was concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

A gender-based analysis plus (GBA+) assessment conducted as part of this proposal identified that, as women constitute a significantly smaller number of FFB members, the proposed amendments would largely impact men. It is not expected that the proposed amendments would disproportionately impact any other group.

Implementation, compliance and enforcement, and service standards

Compliance and enforcement

The proposed amendments would come into force on the day on which they are published. No guidelines would be required. As the proposed amendments are administrative in nature, no additional inspectors are anticipated to be needed.

Contact

Marie-France Sanschagrin
Acting Senior Director
Workplace Directorate
Labour Program
Employment and Social Development Canada
165 De l’Hôtel-de-Ville Street
Place du Portage, Phase II, 10th Floor
Gatineau, Quebec
J8X 3X2
Email: edsc.lab.sst.politiques-lab.ohs.policy.esdc@labour-travail.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed New Brunswick Nuclear Power Plant Exclusion Regulations (Parts I, II and III of the Canada Labour Code and the Non-smokers’ Health Act) under sections 121.1footnote a, 121.2footnote b, 121.5footnote c, 158footnote d, 159footnote e, 265footnote f and 266footnote g of the Canada Labour Code footnote h, and sections 8.1footnote i and 8.2footnote j of the Non-smokers’ Health Act footnote k.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, mail or any other means, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Marie-France Sanschagrin, Acting Senior Director, Workplace Directorate, Labour Program, Employment and Social Development Canada, 165 De l’Hôtel-de-Ville Street, Place du Portage, Phase II, 10th Floor, Gatineau, Quebec J8X 3X2 (email: edsc.lab.sst.politiques-lab.ohs.policy.esdc@labour-travail.gc.ca).

Ottawa, April 11, 2024

Wendy Nixon
Assistant Clerk of the Privy Council

New Brunswick Nuclear Power Plant Exclusion Regulations (Parts I, II and III of the Canada Labour Code and the Non-smokers’ Health Act)

Definition

Definition of nuclear power plant

1 In these Regulations, nuclear power plant means a Class IA nuclear facility as defined in section 1 of the Class I Nuclear Facilities Regulations that has been constructed to generate electricity or heat for a commercial purpose and that is located in New Brunswick.

General

Application

2 Parts I, II and III of the Canada Labour Code and the Non-smokers’ Health Act apply to employment on or in connection with a nuclear power plant that is, or is a part of, a corporation that is an agent of His Majesty in right of New Brunswick.

Application of New Brunswick Acts and Instruments

3 The following provisions, Acts and instruments, as amended from time to time, apply to employment on or in connection with a nuclear power plant, to the extent that they are relevant to industrial relations, occupational health and safety or labour standards, and to smoking at a workplace that is related to such employment:

PART 1
Industrial Relations

Exclusion

4 Despite section 2, employment on or in connection with a nuclear power plant is excluded from the application of Part I of the Canada Labour Code, except sections 121.1 to 121.5.

Application of New Brunswick Acts and Instruments

5 The following Acts and instruments, as amended from time to time, apply, to the extent that they are relevant to industrial relations, to employment on or in connection with a nuclear power plant:

PART 2
Occupational Health and Safety

Exclusion

6 Despite section 2, employment on or in connection with a nuclear power plant is excluded from the application of Part II of the Canada Labour Code, except sections 158 to 160.

Application of New Brunswick Acts and Regulations

7 The following Acts and instruments, as amended from time to time, apply, to the extent that they are relevant to occupational health and safety, to employment on or in connection with a nuclear power plant:

Adaptation

8 For the purposes of paragraph 7(b), section 19 of the Occupational Health and Safety Act, S.N.B. 1983, c. O-0.2, is adapted as follows:

19 (1) An employee may refuse to do any act where he has reasonable grounds for believing that the act is likely to endanger his health or safety or the health or safety of any other employee.

(2) Subsection (1) does not apply to an employee who is employed on or in connection with a nuclear power plant where the act is inherent in the employee’s work or is a normal condition of the employee’s employment or when the employee’s refusal to work would directly endanger the life, health or safety of another person.

Inconsistency

9 The provisions of the Nuclear Safety and Control Act and the regulations made under that Act — relating to occupational health and safety in relation to employment referred to in section 6 — prevail over the provisions of these Regulations and the Acts and instruments referred to in section 7, to the extent of any inconsistency between them.

PART 3
Labour Standards

Exclusion

10 Despite section 2, employment on or in connection with a nuclear power plant is excluded from the application of Part III of the Canada Labour Code, except sections 265 to 267.

Application of New Brunswick Acts and Regulations

11 The following Acts and instruments, as amended from time to time, apply, to the extent that they are relevant to labour standards, to employment on or in connection with a nuclear power plant:

PART 4
Smoke-free Workplace

Exclusion

12 Despite section 2, employment on or in connection with a nuclear power plant is excluded from the application of the Non-smokers’ Health Act, except sections 8.1 and 8.2.

Application of New Brunswick Act and Regulations

13 The Smoke-free Places Act, R.S.N.B. 2011, c. 222, other than subsection 2(3), and its regulations, as amended from time to time, apply, to the extent that they are relevant to smoking at a workplace that is related to employment on or in connection with a nuclear power plant.

Repeal and Coming into Force

Repeal

14 The Point Lepreau, New Brunswick Nuclear Facility Exclusion Regulations (Parts I, II and III of the Canada Labour Code and the Non-Smokers’ Health Act) footnote 4 are repealed.

Coming into Force

Publication

15 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

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