Article by Dan Black*
The following checklist is designed to assist employers to comply with, and reduce the risk of being prosecuted under, Part 3 of the Workers Compensation Act (British Columbia) (the "Act") in the event that a worker is injured or killed as a result of a workplace safety incident. The checklist is necessarily of a general nature. Employers are urged to seek specific legal advice in the event of a workplace safety incident and not to rely solely on this checklist.
A. Confirm that the Workers Compensation Act – Part 3 (British Columbia) Applies
1. This checklist is intended for provincially-regulated businesses to which the Act applies. If the employer's business is federally-regulated, reference must instead be made to Part II of the Canada Labour Code.
2. Subject to certain exceptions, Part 3 of the Act applies to every employer and worker whose occupational health and safety are within British Columbia's jurisdiction. Determine whether there is an "employer", as defined by Section 1 of the Act:
"employer" means: every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry.
In addition to employers and workers, Regulation 296/97 (Occupational Health and Safety Regulation) also applies to "all other persons working in or contributing to the production of any industry within the Scope of Part 3" of the Act. (Section 2.1.)
Read Section 108 of the Act, as well as Section 1 and Section 106 for the definitions of "Worker" and "Industry".
B. Determine the Degree of Injury Sustained by a Worker
3. Determine whether any worker involved in the workplace safety incident was killed or suffered a "Reportable Injury".
Regulation 713/74 defines a "Reportable injury" to mean an injury in which:
(a) the worker loses consciousness following the injury;
(b) the worker is transported or directed by a first aid attendant or other representative of the employer to a hospital or other place of medical treatment, or is recommended by such person to go to such place;
(c) the injury is one that obviously requires medical treatment;
(d) the worker states that the worker intends to seek medical treatment;
(e) the worker has received medical treatment for the injury;
(f) the worker is unable or claims that the worker is unable by reason of the injury to return to the worker's usual job function on any working day subsequent to the day of injury;
(g) the injury or accident resulted or is claimed to have resulted in the breakage of an artificial member, eyeglasses, dentures or a hearing aid;
(h) the worker or the board has requested that an employer's report be sent to WorkSafeBC.
C. If a Worker was Killed or Suffered a "Reportable Injury" DO NOT Disturb the Accident Scene
4. If a worker was killed or suffered a "reportable injury", ensure that the scene of the workplace safety incident is not disturbed, even if the work of other employees must be stopped as a result. Subsection 172(2) of the Act provides that no one may disturb the scene until permission to do so has been given by a WorkSafeBC inspector or a peace officer, except for the purpose of:
(a) attending to persons injured or killed;
(b) preventing further injuries; or
(c) protecting property that is endangered as a result of the accident.
5. If in doubt as to whether a worker has suffered a "reportable injury", ensure that the scene of the workplace safety incident is not disturbed at least until the employer's lawyer has been consulted.
D. Determine the Applicable Notice Requirements
(i) If a Worker was Killed or a "Reportable Injury" Occurred
6. In accordance with Subsection 172(1), an employer must immediately notify WorkSafeBC of any accident that:
(a) resulted in serious injury to or the death of a worker;
(b) involved a major structural failure or collapse of a building, bridge, tower, crane, hoist, temporary construction support system to excavation;
(c) involved major release of a hazardous substance;
(d) is required by regulation to be reported.
7. Section 175 requires that a copy of a written investigation report be sent to the joint committee or worker representative, as well as WorkSafeBC, after a "reportable" incident occurs. Confirm who should participate in an investigation of the incident on behalf of the employer and contact these persons, including the employer's lawyer, immediately.
8. The contents of the written investigation report are specified in Regulation 296/97, which states that the report must include:
(a) the place, date and time of the incident;
(b) the names and job titles of persons injured in the incident;
(c) the names of witnesses;
(d) a brief description of the incident;
(e) a statement of the sequence of events which preceded the incident;
(f) identification of any unsafe conditions, acts or procedures which contributed in any manner to the incident;
(g) recommended corrective actions to prevent similar incidents; and
(h) the names of the persons who investigated the incident.
9. Care should be taken in drafting the report to ensure that only factual details are included. In particular, do not speculate as to how or why the safety incident happened.
10. The employer's lawyer should review, or be involved in the drafting of, the report before it is finalized and submitted to WorkSafeBC.
(iii) Form 7 Under the Workers Compensation Act (British Columbia)
11. Notice to WorkSafeBC is made on WorkSafeBC's Form 7, which must be submitted within three days after the employer learns of a "reportable" accident or injury to a worker employed by the employer.
12. Care should be taken in completing the Form 7 to ensure that, while the information is accurate, self-incriminating statements are not made.
13. The employer's lawyer should ideally review, or be involved in the drafting of, the Form 7 before it is finalized and submitted to WorkSafeBC.
E. Consider Whether the Employer's Lawyer Should be Asked to Attend at the Scene of the Workplace Safety Incident
14. If a worker was killed or a "reportable" incident took place (or if there is any doubt as to whether a "reportable" incident took occurred), the employer's lawyer should attend at the scene of the workplace safety incident.
15. If a worker was not killed or a "reportable" incident did not occur, consider whether there are other reasons why the employer's lawyer should attend (e.g., the nature of the workplace safety incident, the prior workplace safety incident history of the employer, etc.).
16. Consider also whether independent legal representation should be obtained for supervisors and others who may be prosecuted.
17. If the employer's lawyer will be attending at the scene of the workplace safety incident, depending upon how long it will take the lawyer to arrive, WorkSafeBC may or may not be willing to delay its investigation. For fatal, "reportable" or other workplace safety incidents, if possible, the employer's lawyer should interview and prepare any management witnesses before a WorkSafeBC inspector interviews them.
18. At a minimum, the inspector should be asked to refrain from interviewing management witnesses until the employer's lawyer arrives. At the same time, take care not to do anything that might constitute obstruction of the inspector (refer to Section 186 of the Act).
19. If the employer's management intends to interview a non-managerial employee, it is recommended that a union representative (for a unionized employee) or a witness (for a nonunionized employee) be present during the interview.
F. The Workers Compensation Board's Investigation
20. If a worker was killed or suffered a "reportable injury", or if the workplace safety incident is considered to be "reportable" for any other reason, WorkSafeBC will send an inspector to conduct an immediate investigation. Otherwise, the inspector may conduct an investigation a day or so after the workplace safety incident.
21. Be aware that an inspector has very extensive statutory powers under Subsection 179(3) of the Act, and may also be granted additional powers under Subsection 187(h) of the Act.
22. Also be aware that Section 186 of the Act prohibits any person from hindering, obstructing, molesting or interfering with an inspector in the exercise of a power, or performance of a duty under the Act.
23. Ensure that a representative of the employer always accompanies the inspector and takes notes of what the inspector observes, who the inspector interviews, what samples and/or photographs are taken, etc. Take the same photographs and ask for split samples. The employer should have its own samples independently analysed.
24. As part of the investigation, the inspector may seize items in the following ways:
(a) by obtaining a search warrant pursuant to Section 222 of the Act;
(b) if the thing has been produced to the officer or is in plain view; and
(c) if the officer has reasonable grounds for believing that Part 3 of the Act, the regulations or an order has been contravened and that the thing would afford evidence of the contravention.
The employer (or the employer's lawyer) should take care to ensure that the inspector follows the appropriate steps. The inspector's failure to do so may result in violations of Section 8 of the Canadian Charter of Rights and Freedoms, which may then result in the seized evidence being excluded at trial, or in a stay of any charges that may be laid under the Act.
25. Consider whether documents or other items should be produced to the inspector "without prejudice" (e.g., by placing the document or item in a sealed envelope) where solicitor-client privilege or relevancy may be an issue.
26. Ensure that a record of things (and copies of documents) seized is provided by the inspector (and/or made and kept by the employer).
27. If WorkSafeBC involves an expert in its investigation, consider whether the employer should also involve its own expert, either during WorkSafeBC's investigation or shortly thereafter. The purpose would be to better understand the cause of the workplace safety incident and identify any preventative measures that should be taken to prevent a reoccurrence. If the employer decides to involve an expert, the expert should be retained by (or, at a minimum, on the express instruction of) the employer's lawyer so that solicitor-client privilege may be asserted over the expert's report(s).
28. The inspector will interview witnesses and take written notes of the interview. Management witnesses may be counselled not to sign the written statement recorded by the inspector.
Alternatively, they may choose to sign the statement, but indicating (in writing) that the statement is correct to the best of their present knowledge, but further details may occur to them at a later date.
29. The inspector may permit an employer representative (or the employer's lawyer) to sit in on the inspector's interviews. However, the representative generally should not take an active role in the interview. The representative may, however, ensure that the inspector acts in a lawful manner and take notes of the interview questions and answers.
30. The inspector will usually decline to provide the employer with a copy of witness statements as recorded by the inspector. However, all witnesses should be advised to request a copy of their written statement, which they are then free to provide to the employer.
G. The Worker Investigation
31. Regulation 296/97 provides that, where feasible, the members of the employer's joint occupational health and safety committee ("JHSC") should participate in all workplace inspections.
H. The Employer's Investigation
32. Once the WorkSafeBC inspector leaves the workplace, whether or not the workplace safety incident resulted in a fatal or "reportable" injury, the employer should undertake a thorough investigation of the safety incident. The investigation should be undertaken at the direction of, and the investigators should ideally report to, the employer's lawyer so that solicitor-client privilege may be asserted over the investigation.
33. The employer's investigation is intended to assist in arguing that the safety incident was unforeseeable, or that the employer was duly diligent in its efforts to prevent the workplace safety incident from occurring. The investigation should include a review of three to five years' worth of JHSC minutes, workplace policies, worker training, work refusals, etc. The employer's lawyer should provide advice on whether or not the results of the investigation should be shared with WorkSafeBC.
I. Orders Issued by the WorkSafeBC Inspector
34. Determine whether or not a stop work order has been issued. The equipment, machine or work process for which a stop work order is issued must not be used until the inspector lifts the order. Consider whether to request a stay of, or whether to appeal, the stop work order.
35. Consider any orders that may be issued following the workplace safety incident. Section 96.2 of the Act provides that an application for review of an order made under Part 3 of the Act must be made within 90 days after the order was made. If the order is rescinded, the substantive ground for a prosecution under the Act may be eliminated. However, be aware that an employer appealing an order bears the onus and must present its case first. This is an opportunity for WorkSafeBC to learn additional details about the case that it may not have collected during its investigation.
36. Once compliance with an order has been achieved, ensure that WorkSafeBC is notified of such compliance.
J. If an Inquest is Called
37. WorkSafeBC has 2 years to decide whether to lay charges in relation to a workplace safety incident. Although it is not the purpose of an inquest to assign blame for a death, the inquest process may assist WorkSafeBC to learn details about a case that it may not have collected during its investigation.
38. If an inquest is called within the 2 year period, consider whether to object. If WorkSafeBC will not guarantee that it won't prosecute, bring a motion to delay the inquest until the expiry of the 2 year limitation period, or until the conclusion of any prosecution that is commenced.
K. Dealing with Injured Workers and Their Families and Co-workers
39. The employer should ensure that it deals humanely with injured workers and their families. For example, consider paying for the worker's spouse/family to stay in a hotel near the hospital where the worker is taken.
40. Consider retaining an employee assistance program counsellor or grief counsellor to assist family members and co-workers with shock.
41. Although such steps will not eliminate the risk of prosecution, they will assist in sustaining the morale of co-workers and may be referred to in sentencing submissions.
L. Publicity Relating to the Accident
42. Assign one person (either an expert in communications and public relations, or an appropriately qualified representative of the employer) to be responsible for responding to all enquiries from the press, the public and the workforce respecting the workplace safety incident. All other employees should be instructed to refer all enquiries to that person. No one else should comment to anyone on the workplace safety incident.
43. It is a good idea to prepare a written statement to serve as a script for the person responsible for publicity. The script should be reviewed by the employer's lawyer and/or by an expert in communications and public relations.
*Originally presented at the Davis LLP Western Canada Employment & Labour Law Conference on October 26, 2012
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.