Canada: Workplace Accidents: To Give Notice Or Not To Give Notice – That's Only One Of The Questions…

Last Updated: March 19 2019
Article by David S. Reiter

Nobody wants workplace accidents to happen. Businesses want their workers to go home at the end of the day and for their workplaces to stay safe. Similarly, the Ontario Ministry of Labour (MOL) would prefer that their inspectors spend their time proactively promoting safety by conducting blitzes and educational initiatives instead of responding to accidents. These are just simple truths.

Unfortunately though, accidents do happen. And when they do, the MOL shifts into a reactive mode by investigating, issuing Orders and laying charges. It does so with the understanding that Orders correct deficiencies, and prosecutions deter others from making similar mistakes.

Understandably, this reactive mode is important to the MOL's discharge of its mandate and the MOL therefore takes constructors' and employers' self-reporting obligations very seriously. Breaches of the duty tend to erode trust on an investigation and can even lead to prosecutions in their own right.

Notwithstanding that proper notice is so important, we have been seeing a number of Inspectors' Orders that direct businesses to provide written accident reports. Our experience indicates that many businesses do not completely understand what notice is required or how it should be given. This article is aimed at helping to correct that.

When There is a Fatality or a Critical Injury

If a person is killed or critically injured at a workplace, the constructor and employer must immediately notify an MOL Inspector, the workplace's joint health and safety committee, health and safety representative, and trade union, as may be the case. This should be done by phone or other direct means such as email, and a written report of the occurrence should be sent to an MOL Director within 48 hours. This obligation arises under subsection 51(1) of the Occupational Health & Safety Act, R.S.O. 1990, c. O1 (the Act).

Critical injuries are defined in Ontario Regulation 834 (R.R.O. 1990). They include serious injuries that place life in jeopardy; produce unconsciousness; result in substantial loss of blood; involve either (a) the fracture of a leg or arm but not a finger or toe, or (b) the amputation of a leg, arm, hand or foot but not a finger or toe; consist of burns to a major portion of the body; or cause the loss of sight in an eye.

When a person is killed or critically injured, the content that must be included in the written report is determined by the regime to which the workplace is subject.

For example, if the workplace is subject to the Construction Regulation (Ont. Reg. 213/91), the report should include the name and address of the constructor and the employer (if applicable); the nature and circumstances of the occurrence, and the bodily injury sustained by the person; a description of the machinery or equipment involved; the time and place of the occurrence; the name and address of the person involved; the names and addresses of all witnesses to the occurrence; the name and address of any legally qualified medical practitioner by whom the person was or is being attended for the injury; and the steps taken to prevent a recurrence. This is set out in section 8 of the Construction Regulation.

If however, the workplace is subject to the Industrial Regulation (R.R.O. 1990, Reg 851), the report should include the name and address of the constructor and the employer; the nature and the circumstances of the occurrence and of the bodily injury sustained; a description of the machinery or equipment involved; the time and place of the occurrence; the name and address of the person who was killed or critically injured; the names and addresses of all witnesses to the occurrence; and the name and address of the physician or surgeon, if any, by whom the person was or is being attended for the injury. This is set out in subsection 5(1) of the Industrial Regulation.

When Someone Cannot Perform Usual Work, or Requires Medical Attention

If a person is disabled from performing his or her usual work, or requires medical attention because of an accident at a workplace, the employer must provide a report to the workplace's joint health and safety committee, health and safety representative, and trade union, as may be the case. As well, if an Inspector requires it, the report should be forwarded to a Director of the MOL. Regardless of to whom the report should be sent, it should be sent in writing within four days of the occurrence. This obligation arises under subsection 52(1) of the Act.

As is the case with fatality and critical injury reports, the content that needs to be included in this type of report is also determined by the regime to which the workplace is subject.

In the case of industrial establishments, the report should include the name, address and type of business of the employer; the nature and the circumstances of the occurrence and of the bodily injury or illness sustained; a description of the machinery or equipment involved; the time and place of the occurrence; the name and address of the person suffering the injury or illness; the names and addresses of all witnesses to the occurrence; the name and address of the physician or surgeon, if any, by whom the person was or is being attended for the injury or illness; and the steps taken to prevent a recurrence or further illness. This is set out in subsection 5(2) of the Industrial Regulation.

In the case of construction projects, the report should include the name, address and type of business of the employer; the nature and the circumstances of the occurrence, and the bodily injury or illness sustained by the worker; a description of the machinery or equipment involved; the time and place of the occurrence; the name and address of the worker involved; the names and addresses of all witnesses to the occurrence; the name and address of any legally qualified medical practitioner by whom the worker was or is being attended for the injury or illness; the name and address of each medical facility, if any, where the worker was or is being attended for the injury or illness; and the steps taken to prevent a recurrence. This is set out in subsection 9(1) of the Construction Regulation.

Occupational Illnesses

Employers have to provide written notice to the MOL when they learn that a worker has a condition resulting from workplace exposure to a physical, chemical or biological agent that has affected the worker's normal physiological mechanisms, and which has impaired the worker's health. This notice must be given to a MOL Director, the company's joint health and safety committee, its health and safety representative, and its trade union, as may be the case, and it must be given within four days of learning of the condition. This requirement is set out in subsection 52(2) of the Act.

As is the case with other reports, the content that needs to be included is determined by the regime to which the workplace is subject.

In the case of industrial establishments, the required content is the same as that which is required where someone cannot perform usual work or requires medical attention (see immediately preceding section above).

In the case of construction projects, the report needs to include the employer's name, address and type of business; the nature of the illness; the worker's name and address; the name and address of any legally qualified medical practitioner by whom the worker was or is being attended for the illness; the name and address of each medical facility, if any, where the worker was or is being attended for the illness; and a description of the steps taken to prevent a recurrence or further illness. This is set out in subsection 9(2) of the Construction Regulation.

When There Has Been an Accident, Explosion, etc.

If there has been an unexpected accident, or another prescribed incident1 at a construction project, mine or mining plant, the constructor (or employer if the accident occurs at a mine or mining plant) needs to give written notice of the incident within two days. The notice has to be given to the committee, health and safety representative and trade union, if any, and, to a MOL Director if it wasn't previously provided to a Director under either of sections 51 or 52 of the Act. This is set out in section 53 of the Act. These reports must set out the circumstances of the occurrence and the steps being taken to prevent a recurrence. This is set out in subsection 11(2) of the Construction Regulation.

Additional Requirements If There Is A Failure of a Structure, Excavation or Crane, etc.

If notice has to be given, and the underlying incident involves a project at which there has been a failure of: all or part of a temporary or permanent works; a structure; a wall of an excavation or of a similar earthwork for which a professional engineer has given a written opinion that the stability of the wall is such that no worker will be endangered by it; or a crane or similar hoisting device, the notice will have to be followed by a professional engineer's written opinion that sets out the cause of the occurrence. This engineer's report will have to be delivered within 14 days of the occurrence. This is set out under s.12 of the Construction Regulation.

Practical Considerations

Prosecutors may well try to rely upon notices as evidence in support of their cases when charges are laid after there has been an incident. Further, it may not be clear if notice is even required. For example, if there is an incident, but workers aren't injured, does notice need to be given? After all, the focus is on workplace health and safety.2

Because these and other issues can arise, we strongly recommend that businesses obtain legal advice when they are preparing notices under the Act. Oftentimes, premature conclusions are included in these reports, or reports are not provided as required. Both of these issues end up working against businesses, and counsel will know how to help.

For example, counsel can identify whether, and what, report is needed in borderline cases, and they can then work through the hazards associated with providing notice by preparing a report that satisfies statutory criteria while keeping the door open for further investigation, analysis and conclusions.

As first impressions tend to last, this kind of help can end up being crucial.

Footnotes

1. Other incidents include premature or unexpected explosion, fire, flood or inrush of water, failure of any equipment, machine, device, article or thing, cave-in, subsidence, rockburst, and other incidents set out in s.11(1) of the Construction Reg (213/91) including: a worker falling a vertical distance of three metres or more; a worker falling and having the fall arrested by a fall arrest system other than a fall restricting system; a worker becoming unconscious for any reason; accidental contact by a worker or by a worker's tool or equipment with energized electrical equipment, installations or conductors; accidental contact by a crane, similar hoisting device, backhoe, power shovel or other vehicle or equipment or its load with an energized electrical conductor rated at more than 750 volts; structural failure of all or part of falsework designed by, or required by this Regulation to be designed by, a professional engineer; structural failure of a principal supporting member, including a column, beam, wall or truss, of a structure; failure of all or part of the structural supports of a scaffold; structural failure of all or part of an earth- or water-retaining structure, including a failure of the temporary or permanent supports for a shaft, tunnel, caisson, cofferdam or trench; failure of a wall of an excavation or of similar earthwork with respect to which a professional engineer has given a written opinion that the stability of the wall is such that no worker will be endangered by it; or the overturning or the structural failure of all or part of a crane or similar hoisting device.

2. Issues like this have been dealt with by the courts, and the test that has developed requires that there be a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at a workplace (Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)).

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.

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