Welcome to the first article in eCompliance’s Occupational Health and Safety (OHS) Legal Update series. It’s a feature that tackles your OHS legal quandaries, so feel free to send in your questions. We’ll select a new question from these submissions and provide you with an answer.
Health and Safety legislation can be complicated. It’s essential for OHS professionals to know the ins-and-outs of complying with the law, and we want to ensure that you receive the information you need to be effective in your organization. Working with eCompliance to do that is Occupational Health and Safety lawyer, Shilo Neveu, one only four lawyers in Canada with a CRSP designation.
This month, we’re looking at how electronic documents (e-documents) can be used in your OHS management system. There’s some confusion about e-documents within the industry, especially amongst OHS professionals. Let’s dispel any myths that might be lingering.
Myth: Electronic documents aren’t accepted by OHS Legislation nor are they admissible in court
There’s a distinction between what’s required according to OHS Legislation and what the courts require for their legal proceedings. Generally, the distinction is between producible documents for OHS legislation and the admissibility of digital documents in court proceedings.
Given the sometimes archaic nature of OHS legislation, some jurisdictions still require certain OHS documents to be made available in a paper format[1]. For this reason, OHS professionals need to be vigilant and review their jurisdiction’s OHS legislation. When reviewing, look for specific performance requirements about producing paper documents. Though, my research shows most OHS legislation in Canada allows for the use of e-documents. However, there’s a catch…
Not all e-documents are created equal
Although the requirement to provide hard-copy, paper documents for court proceedings has generally gone the way of the dodo bird, this doesn’t give you or your organization carte blanche to produce e-documents. Each jurisdiction in Canada has their own evidence legislation for court proceedings[2]. To ensure full compliance, an organization must take steps to meet their jurisdiction’s particular requirements. With that, the issue most organizations fall down on is proof of authenticity.
Proof positive
There are a number of ways to prove the authenticity of an e-document. One of the easiest is to look past the e-document itself and focus on the e-document system that produced it. In the absence of contrary evidence, you need to prove the integrity of an e-document’s storage and record system[3]. Also, you’ll need to provide evidence that at all relevant times the computer system, or the device used by the e-documents system, was operating properly[4]. If it wasn’t operating properly, you’ll need to prove that it didn’t affect the integrity of the electronic document and that there are no other reasonable grounds to doubt the integrity of the e-document’s system[5].
Set up your e-document system with a standard in mind
My best recommendation is to build your e-document system according to a recognized standard, procedure, usage, or practice concerning how your e-documents are to be recorded or stored[6] – similar to your OHS management system which meets recognized standards like COR, SECOR, CSA Z1000-06, ISO 18001, etc. The best standard I’ve reviewed is the Canadian General Standard Board’s Electronic Records as Documentary Evidence CAN/CGSB 72.34-2005[7] (ERDE).
The ERDE outlines electronic record management policies, procedures, practices, and documentation to ensure the reliability, integrity, and authenticity of electronic records[8]. But, don’t go running off to your organization saying, “This is the only standard we can use”. Similar to meeting many regulatory requirements, the legislation sets out the minimum standard, but how you meet that standard is up to you. If you choose not to follow the ERDE, I would still strongly recommend using it as a standard to compare your existing e-document system against. You’ll be able to see if your current e-document system is playing ball, or is on the sidelines kicking dirt.
In short, the ERDE:
a) Ensures that electronic records can reliably support business decisions and exchanges of commitments;
b) Enhances the admissibility and the weight of electronic records in a court of law, a tribunal, or an inquiry; and
c) Protects the value of electronic records in documenting the content and accountability for decisions and transactions[9].
Additionally, the ERDE has been adopted by heavy hitters like the Canada Revenue Agency (CRA). In CRA’s Income Tax circular IC05-1R1[10] it specifically mentions the use of ERDE as a means to “assist in establishing the legal validity of an electronic record”[11]. My thoughts: if it keeps the tax man off you’re back, it’s pretty good.
Using a set standard, like the ERDE, provides evidence that may help determine whether your e-documents will be accepted by the judicial process[12] and meet the OHS legislative requirements – subject, of course, to specific legislative requirements mentioned earlier.
If you want to use e-documents, whether you use a DIY[13] e-document system or an industry standard, you need to provide a detailed description of your organizations Standard Operating Procedures for recording and storing e-documents.
We’ll dig deeper into the e-document issue next month, when the second article in our Legal Update series answers the question of how long you should retain your OHS e-documents.
About the author, Shilo Neveu is recognized as only one of four lawyers in Canada to achieve a CRSP designation. Whether advising organizations as an HSE Advisor or advocating for clients as an OHS lawyer, Shilo has worked endlessly to be a trusted advisor to industry.
[1] An example would be the Saskatchewan Occupational Health and Safety Regulations, 1996, R.R.S. c. 0-1.1 section 315(j) which requires that “readily available” documents are present in an appropriate place in the form of a paper copy that can be handled by a worker.
[2] Without performing an extensive review of every jurisdictions evidence legislation, I will refer instead to the Canada Evidence Act, R.S.C., 1985, c. C-5 throughout this article. Though, in my experience, most jurisdictions evidence legislation follow the provisions of the Canada Evidence Act.
[3] Canada Evidence Act, supra note 4 2 at section 31.3(a).
[4] Canada Evidence Act, supra note 4 2 at section 31.3(a).
[5] Canada Evidence Act, supra note 2 at section 31.3(a).
[6] Canada Evidence Act, supra note 2 at section 31.5.
[7] Unfortunately, you can only purchase Electronic Records as Documentary Evidence from the Canadian General Standards Board. You may purchase it here: <http://www.techstreet.com/cgsb/products/1252845>. Another fun fact is that the Electronic Records as Documentary Evidence used the ISO 15489-1 and 2 “Records Management” standard (2001) as its foundation.
[8] “IC05-1 Electronic Record Keeping”, Income Tax Information Circular, Canada Revenue Agency (June 2005) paragraph 24 online: Chartered Accountants of Ontario <http://www.icao.on.ca/CAfirms/PracticeMatters/Articles/1007page10580.pdf>.
[9] “CAN/CGSB 72.34 – 2005 Electronic Records as Documentary Evidence” Canadian General Standards Board (16 April 2013) onlilne: <http://www.techstreet.com/cgsb/products/1252845>.
[10] “IC05-1R1 Electronic Record Keeping”, Income Tax Information Circular, Canada Revenue Agency (June 2010) online: Canada Revenue Agency < http://www.cra-arc.gc.ca/E/pub/tp/ic05-1r1/ic05-1r1-e.html>.
[11] Ibid at paragraph 24.
[12] This statement should be more expansive but my literary liberties are being constrained by my articles length! It’s not just the “judicial process”, this applies virtually anywhere you are allowed to produce an e-document. For example: Court of law, tribunals, inquiries, proceedings, legislation, etc.
[13] The term DIY refers to ‘Do It Yourself”