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

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...