OHS & Workers’ Compensation Advisor

Introduction: You’ve Had a Serious Accident at Your Workplace!

Despite all best efforts, and apparent reasonable care, a serious workplace accident can be experienced even by the most conscientious and careful employer. When such an event occurs, management of numerous parties (police, OHS, family, the workforce) and issues (evidence gathering, legal advice, experts, statements, internal investigations) occur with such speed there is little time to react, let alone plan, by OHS or human resource professionals and management. This Advisor examines the impacts of a serious accident, and accident response planning for mitigating, to the extent possible, the adverse consequences for the employer and its management.

The impact of a serious workplace accident can reverberate for years.  The immediate or short-term impacts include: the emotional turmoil for everyone in the workplace and the families and friends of those involved; the attendance of police, OHS, and possibly other authorities; the possible shut down of all or part of the workplace;, and determining any necessary remedial action.  Longer term implications can include: the possible receipt of charges giving rise to a costly OHS or other regulatory prosecution or administrative monetary penalty (where applicable), litigation of workers’ compensation issues, and a Coroner’s inquest or death investigation.  Further, there exists the possibility that Criminal Code charges may be brought against the employer, its managers, senior executives, or workers should it be determined that “wanton or reckless disregard” for worker or public safety has occurred.

Beyond these ”legal” consequences there are tremendous reputational concerns for an organization experiencing a serious accident or high profile police or OHS investigation, that, in an age of pervasive coverage by traditional and newer media sources, should not be overlooked.

The worst possible time for an employer to prepare for the impact of a workplace accident is after it has happened.  An ad hoc crisis-management approach (or even a “break glass, take out prepared written Accident Response Plan and apply” approach) can result in far more significant legal liability and negative publicity than necessary. While best practices for managing a serious workplace accident will not eliminate all of its effects, key management cornerstones such as an Accident Response Plan and training of key frontline personnel can, in our experience:

• ensure that opportunities to protect legally privileged documents and information are used;

• ensure that all appropriate legal requirements and investigators’ demands are met, without incriminating the employer or individuals involved more than necessary;

• ensure the gathering and preservation of details and evidence potentially helpful to a defence should that become necessary; and

• ensure that the rights of organizations and individuals, which reach heightened status during a criminal investigation, are known and protected.

Though there may some nuanced differences between jurisdictions in how to implement recommended post-accident strategies, very similar steps can be taken by employers regardless of where they operate in Canada. This article will provide a roadmap to critical actions employers across Canada can take in order mitigate the adverse impacts of a workplace accident and the legal landscape surrounding the accident and its aftermath.

A Written Accident Response Plan and the Accident Response Coordinator

What is an Accident Response Plan?

While a written Accident Response Plan[1] is not a legal requirement, it is an excellent proactive step to help employers and their management navigate the stress and, potential, myriad of issues arising from a serious workplace accident. As OHS lawyers, we know that employers take proactive steps to address all manner of workplace safety issues before they happen – which is a legal requirement.  Speaking from our experience, there should be no difference in approach to a potential accident as we have seen even the most proactive and safety conscious employers have a workplace accident.  Having and implementing an Accident Response Plan ensures that the organization is as prepared as it can be to successfully navigate through a time of crisis. Waiting until an accident occurs to create or think about a response often leads to a disorganized response in what can quickly become challenging, if not overwhelming, circumstances.

A written Accident Response Plan is more than a process for conducting an accident investigation to discover the root cause(s) of an accident and determine preventative action(s). It is also more than identifying the steps to comply with legislated requirements for reporting to OHS and other regulators. An Accident Response Plan amalgamates all key accident-related procedures – from the most basic immediate obligation to notify specific management representatives and comply with statutory reporting requirements; to outlining steps to manage investigations by the police, OHS authorities, and other regulatory agencies;  to confidential instructions for key frontline personnel to properly protect the interests of the corporation, its supervisors, and its officers and directors during the course of an investigation.  .

What is an Accident Response Coordinator- And Their Role?

Key frontline personnel and Accident Response Coordinators (those involved in the frontline response and central coordination of an accident response) must be trained in the procedures detailed in the Plan to ensure that the most pertinent measures of the Plan are implemented by frontline personnel who may be present in the event of a workplace accident. At a minimum, the immediate steps that frontline personnel are to take following an accident should be posted in the workplace.  Ideally, frontline staff would be trained on these immediate steps in order to best ensure that they are followed. Typically, frontline personnel, who are at the scene of the accident, only need to understand the basics of the Accident Response Plan. However, it is also important to ensure that a more detailed plan is known and understood by those who may become involved in more complex tasks, including dealing with OHS regulators or handling additional responsibilities later on in an accident investigation. With all of this being said, it is important to ensure that key frontline personnel and Accident Response Coordinators are trained in key procedures applicable to their role. That is to say, the most detailed training should be given to the Accident Response Coordinators as they will be more involved in, and are often very central to, the execution of the Plan than others within the organization. 

A good Accident Response Coordinator[2] should establish themselves as a positive and informed point of contact for regulators and investigators responding to the accident. These individuals can be an OHS professional or manager, and they should be trained in the relevant regulatory provisions for their jurisdiction, including the powers of the regulator or investigator, their obligations to preserve the scene, and their minimum legal reporting obligations. It is important to choose someone who is capable of developing and maintaining professional, cooperative relationships with regulators and investigators. Further to this point, a good Accident Coordinator should be trained on key strategies on how to effectively and strategically interact with regulators and the police.

Because we recommend that the individual(s) who may act as the organization’s Accident Response Coordinator have certain characteristics, we also recommend that they be identified before an accident occurs.  It is probably best to have more than one person who could act as the Accident Response Coordinator because accidents don’t happen when everyone is available.  Further, and in addition to the characteristics recommended above, we normally recommend that, where possible, the person acting as the Accident Response Coordinator not have any direct involvement in or knowledge of the accident in order that they are not continually subject to informal and opportunistic questioning by OHS or other authorities – which can and does happen when the person has ongoing and repeated contact with the investigating officers.

Basic Content of Response Plan

In terms of the content of an Accident Response Plan, it should include:

• details regarding who, within the company, should be notified immediately following a workplace accident;
• roles of individuals who will be coordinating the response;
• procedures for providing medical aid if needed;
• procedures for securing the area and limiting disturbance of the accident scene;
• details regarding the criteria necessary for notification of OHS  and workers’ compensation authorities and a process for confirming the criteria have been met when circumstances are not clear; 
• detailed steps for managing internal and external accident investigations;
• procedures for contacting specialized counsel as necessary and receiving privileged advice; and
• procedures for considering and retaining experts who may need to attend the scene promptly to assess the scene and potentially provide evidence in future.

In the comments that follow, we discuss key elements of an Accident Response Plan in more detail.  We have tried to set them out in as chronological a fashion as possible.  That said, there will be overlap between the various elements of the Plan and every accident will not necessarily engage every element of the Plan.  The Plan must be applied flexibly such that it adapts and addresses the particular circumstances of the accident – another justification for advance preparation.

Accident Response

Immediate Obligations and Practical and Strategic Considerations

It is vital to ensure that those injured in a workplace accident are tended to by providing medical aid as needed.  However, when a workplace accident happens, it is imperative that key frontline personnel and Accident Response Coordinators take immediate steps in response as the potential for organizational and individual liability has now arisen. Senior management should be notified (and, as necessary, internal or external legal counsel and public relations if appropriate) and the Accident Response Coordinator should ensure that the Accident Response Plan is activated and the necessary steps are taken.

A necessary step may be to ensure that the proper authorities are immediately notified and, where immediate notification is required, the regulator(s) responding should be provided with the name of the Accident Response Coordinator. The Accident Response Coordinator should then be their main point of contact through their investigation, dealing with all requests for documents, materials, and statements.

Where required, the accident scene should also be secured to ensure that it is not disturbed more than is permitted by law.  Accident Response Coordinators must know their obligations for preserving the scene, as failing to do so can have serious legal implications for the company and anyone involved in disturbing the scene.  

In addition to managing risk by failing to report or secure the scene where required, the Accident Response Coordinator (perhaps in consultation with senior management and/or legal counsel) should understand when an accident does not need to be reported to the OHS regulator.  Not every accident is reportable (or may not be immediately reportable) and risk can be attracted by reporting an accident without a legal obligation to do so.

The requirements to provide notification of accidents (and certain notifiable events) and hold the accident scene vary from province to province.  They should be clearly set out in the Accident Response Plan and known to the Accident Response Coordinator and key personnel – something that takes on added importance for employers operating in more than one jurisdiction.

Compliance With Legal Obligations Without Incrimination

In addition to understanding when legal obligations are engaged (and the scope of those obligations), training and the Accident Response Plan should ensure that the organization and the Accident Response Coordinator do not provide the regulator with more information than legally required. The importance of ensuring that compulsory OHS accident reports are limited to minimum required details cannot be overemphasized. Most jurisdictions require basic details such as the name of the employer, the name of the worker, the names of witnesses, a summary of the circumstances of the accident, or the name of the attending physician. But such compelled reports do not mandate a detailed written report that goes beyond minimum reporting requirements. Any report containing witness statements, conclusions regarding cause, admissions of fault, prior unanswered concerns raised by workers or joint health and safety committees, or other incriminating details, may be utilized by OHS authorities in their investigation or, potentially, in a prosecution[3]. No organization should ever hand officials the potential case for prosecution against it.

OHS Legal Obligation to Cooperate?

Often the source of confusion or the temptation to provide detailed reports to the OHS regulator is a misconception about statutory obligations to cooperate. Canadian OHS legislation varies in how it states the legal obligations that apply to interactions with OHS regulators.  In some jurisdictions, the legislated obligation is not to obstruct, hinder or interfere with an OHS inspector.  Essentially, the duty is not to obstruct rather than to cooperate and, in our view, this distinction should be kept in mind as it can help reinforce the approach that best minimizes risk.  We do recognize that, in some jurisdictions, OHS legislation specifically mentions a duty cooperate.  We do not see this as materially changing the obligations or ability to act strategically and it certainly does not introduce an obligation to self-incriminate. A statutory obligation to cooperate, however it may be phrased, has never meant, for example, that the regulator could demand the creation of incriminating reports or materials, insist upon statements without the opportunity to confer with legal counsel or demand material which is properly covered by solicitor-client privilege.  Understanding the scope of the legal obligation when dealing with OHS regulators is important as it can allow an organization to be strategic in the nature and content of information provided during the regulator’s investigation.  Anytime the organization is contemplating a strategic position or step, it would be prudent to consult with specialized OHS counsel in order to ensure that such positions or steps are legally sound and unlikely to attract risk. 

It must be understood that any statutory obligation to cooperate in OHS matters does not extend to a criminal investigation of the organization or any individual representative by the police.  It would also not extend to the OHS regulator where the purpose of the regulator’s activities is to gather evidence for use in a prosecution.  However, the point at which the regulator is acting to gather evidence, rather than inspecting for OHS compliance, is often not easily identified, making close support from experienced counsel essential in successfully managing this issue. 

Managing Information During OHS and Police Investigations

When the OHS Regulator and/or police arrive at the workplace to investigate the accident (generally both attend) they are there to gather information.  They may act in a way that is disarming.  They may be friendly and behave in a way inconsistent with stereotypical expectations for enforcement officers.  It may be tempting to believe that their behaviour is inconsistent with, and will not lead to, prosecution or penalties.  It may make it more difficult to adopt and continue a strategic approach in responding to the accident.  However, Accident Response Coordinators and all company officials should not succumb to the temptation to be unguarded.  The same officer who was friendly – even jovial – will be the same one that issues a penalty or returns with a court summons for the company, supervisors, or management.

One of the fundamental purposes of the Accident Response Plan is the gathering and control of information.  In keeping with this fundamental purpose, the Accident Response Coordinator should not release any documents, materials, internal investigation reports (however brief or preliminary), and management should not give information or statements without first contacting and organizing this through the Accident Response Coordinator and, preferably, through legal counsel. When the authorities arrive on scene, the Accident Response Coordinator should immediately contact the corporate representatives, particularly supervisors and managers, and dictate to them that any and all requests for information, documents, and materials should be directed through the Accident Response Coordinator.  Instruction may need to be given on how to politely but forcefully ensure the Accident Response Coordinator maintains central control over the flow of information from the Company.

Canadian OHS investigators have broad powers to investigate OHS matters in workplaces which may result in orders (including stop work orders) and a prosecution or penalty against an employer. Similarly, when the police conduct an investigation, they may lay Criminal Code charges against an employer and individuals if they see fit to do so.  It is, therefore, imperative that, in addition to controlling the flow of information, the employer monitor the external investigations.  Doing so will allow the employer to understand the issues of interest to the external investigators and the nature of the information being collected about those issues – as some of it may not be accurate or complete. 

When an OHS investigator or police officer is conducting their investigation, the Accident Response Coordinator, or someone on his/her behalf, should be shadowing them closely. Detailed notes of the investigation(s) should be kept, including all observations of the investigation, all persons interviewed, all comments made, and all tests performed as well as their results. Additionally, all theories, conclusions, requests, and comments of OHS investigators or police should be recorded. This process for tracking the investigation allows the company to be in a position to correct any negative information, and to provide any positive information which is not gathered or requested.

In addition to monitoring and tracking the theories of the external investigators, the actual information they collect should also be tracked.  All measurements, photographs, documents or physical evidence taken or seized should be tracked and recorded.  The Plan should contain detailed instructions for dealing with seizure of evidence, with or without search warrants. The Accident Response Coordinator should keep detailed privileged and confidential notes with lists of items taken or seized.

A significant issue can arise from external investigations arises where the police or regulator deny the organization access to potentially crucial evidence at the accident scene.  This can happen in the period immediately following the accident but can sometimes last for an extended period of time.  As a result, the Plan should direct that counsel to be contacted immediately to facilitate appropriate requests for access, particularly if experts are being retained by the employer, and access is required to assist with the employer’s investigation or defence.

Obtaining and preserving various details of an investigation helps the employer build their own case and effectively respond to any orders or charges that may be issued against them. Creating and maintaining a record of the evidence taken by OHS investigators/police allows the employer to assess the case against them and fill in gaps in the investigation when appropriate to do so.  An example to demonstrate the importance of such monitoring is that it is quite common for trained workers to understate the nature or amount of training they have received.  When interviewed by an OHS regulator or police, workers may deny ever having been trained or having seen a particular policy or document.  An Accident Response Coordinator should request permission to be present during all OHS and police interviews. If permission is denied, the Accident Response Coordinator should conduct a second or debriefing interview after each OHS or police interview.

Effective monitoring of the external investigations will allow the employer to decide whether to correct any misinformation or provide positive information respecting physical evidence or implemented measures to prevent the accident. The organization will be in a position of greater control over information about the accident and can then determine how and when to use information that may benefit the organization and management. 

Conducting Your Own Internal Accident Investigation

Why Investigate?

The investigation of OHS or police officers will not generally assess the employer’s positions and potential future arguments on matters such as its ongoing reasonable care or due diligence, for a possible prosecution or appeal of an administrative penalty. The OHS or police investigation will also not be shared with the employer- except as disclosure of the case upon prosecution at which point it could be too late to overcome deficiencies or gaps in those investigations.

It is thus prudent for the employer to conduct its own detailed privileged investigation (more on privilege is set out below) .as part of the Accident Response Plan. An immediate and substantive investigation, that examines not only the root cause of the accident but all of the positive measures or “due diligence” that had been taken to prevent it, should be conducted.

To the extent not seized by the police or OHS authorities, organizations should preserve physical evidence of the scene (damaged equipment or materials, photographs of the scene, video recordings) in a safe place pending any potential criminal or OHS prosecution.  Whether or not police and OHS officials have interviewed key witnesses, it is crucial to appreciate that investigators will not conduct the thorough “due diligence” review that employers should conduct in the circumstances. The Accident Response Coordinator should thoroughly interview all witnesses and take detailed notes regarding relevant “due diligence” steps such as knowledge of hazards, knowledge of procedures and rules, training, steps by supervisors to monitor, warnings by supervisors.

Guiding the Internal Investigation

An Accident Response Plan should contain guidelines for how to conduct an effective internal investigation, and Accident Response Coordinators should understand the importance of gathering all available information regarding the causes of the accident and due diligence in order to explore and build a due diligence defence in response to potential future enforcement action (or as applicable for appeal of an administrative penalty).

When conducting an investigation, the individual in charge should carefully consider all potential charges against the corporation or individuals, and all positive pre-accident measures that were taken.  Doing so is tremendously important because there may be limited time and opportunity to gather details while they are fresh and, as noted above, the investigations by external agencies are usually not focused on gathering positive evidence that may benefit the employer and its management.  However, in order to be truly useful, the investigation must be detailed.  It should seek out due diligence information that may not ultimately establish the exercise of all reasonable care but are nonetheless proactive measures designed to avoid the accident

Some key areas that due diligence reviews should focus on are:

• The workers’ knowledge of relevant requirements in applicable OHS legislation, as well as any efforts the company made in regards to advise workers of such requirements;
• The relevant policies, practices, and procedures present in the workplace that may have prevented the accident or injury;
• Any other training that workers received that is relevant to the incident (which could include instruction received by a worker who is a skilled tradesperson or on the job training that identified hazards and the means to address them);;
• Supervisory monitoring or observations of workers to confirm compliance with health and safety requirements;
• The enforcement of policies, practices, and procedures of the Company, demonstrating that the Company sought to ensure compliance with applicable safety measures or requirements; and
• Relevant communications delivered at pre-job meetings, safety reminder meetings, and any specific meeting that occurred before the incident that discussed how work was to be carried out, risks, equipment or materials to be used, and what precautionary measures were taken by the company and workers, supervision.

Sources of all information should be meticulously documented, and the individual responsible for the investigation should take detailed notes of all information gathered in the investigation.

Should an Expert be Hired?

Workplace accidents can involve complex technical issues that cannot be effectively investigated by an employer’s personnel. This can be the case where structural issues, machine or equipment functioning, or in accidents involving electrical contacts/issues or fires are involved. In those situations, it may be necessary to hire an expert in order to assess how the accident occurred, to consider the preventative measures in place prior to the accident, to monitor the technical investigation by other parties, and to provide guidance on any preventative or corrective measures that are required.  Ultimately, the expert may be asked to prepare a report for the organization or legal counsel that may be used as part of a defence to OHS charges or as part of the response to an administrative penalty.

The type of expert required will vary with the circumstances but they are often engineers, medical professionals, hygienists, reconstructionists or other people with specialized knowledge. However, notwithstanding that the accident may have created a myriad of issues to manage and address, the decision on engaging an expert frequently must be one taken quickly after an accident.  There are a number of reasons that a prompt decision is required.  First, there may be a limited number of local people with the relevant expertise.  When technical matters arise, all parties involved in the incident (sometimes including the OHS regulator) may be seeking specialized assistance and delay could mean that the local experts have already been retained by other parties and are not available to assist.  Similarly, as with any calling, some experts may be better than others.  Prompt action to retain an expert, where required, may increase the likelihood that the preferred expert.

Second, engaging an expert soon after the incident will permit a more thorough investigation of the circumstances by the expert and may allow him or her to be of greater service to the organization.  While an expert can be retained after charges or a penalty have been issued, they may be limited to commenting on the investigation and/or reports by the authorities’ expert and less able to develop their own opinion on relevant issues.  However, where the expert is able to attend and assess the scene of the accident, a more detailed examination can be performed that can involve the assessment of circumstances or facts that may not be explored by the authorities.  Sometimes the authorities can overlook very important details or jump to conclusions that may not be accurate.  The employer’s expert can help identify circumstances in which this is occurring which can be very beneficial.

Further, the early involvement of an expert can position the employer to promptly address any technical issues involved in restarting production or operations at the workplace or in ensuring that an investigation can be safely performed.  The OHS regulator may require that a profession review be performed and/or procedures developed to ensure safety during their investigation or in order for operations to resume. 

Finally, the expert may be able to provide key assistance in monitoring or shadowing the authorities’ investigation.  There may be materials, tools or equipment that will be tested by the authorities.  An expert can attend the testing session to observe and document what takes place and to identify any concerns about the testing.  Those concerns could be that the testing methods used were incorrect or improper or that there were matters that should have been investigated that were not.

Protecting Your Documents, Reports, and Expert Reports With Privilege

The value in conducting a detailed and thorough internal investigation is lost if all of the materials prepared during the investigation and any expert or final report have to be given to the OHS regulator or police.  Surrendering such material over can be catastrophic to successfully defending an prosecution or administrative penalty as it may contain admissions, identify shortcomings, or identify flaws in the investigation by the authorities.  Such information will be used by the authorities to tailor charges or penalties and can even result in circumstances where the safety shortcomings found in the internal investigation become the contraventions alleged in a prosecution or used to justify a monetary penalty.  When this happens, it can be very difficult for an employer to defend itself.

The only legal way to prevent the authorities from lawfully obtaining this material is to protect it by legal privilege.  No Canadian OHS statute provides an officer the ability to override privilege and the courts have repeatedly denied attempts by regulators to obtain materials that have become privileged, because of the purpose for which they were created and how they have been handled or controlled.     

There are two forms of privilege that can apply to a post-accident investigation: (1) anticipated litigation privilege; and (2) solicitor-client privilege.  These privileges are created differently but, if properly created and maintained, they can equally protect investigation materials from disclosure to the authorities.

Contemplated litigation privilege is a privilege that can be created without the involvement of a lawyer.  It requires that the information be gathered or created for the dominant purpose of preparing for reasonably apprehended litigation.  After a workplace accident, there may be litigation with the OHS regulator (who may prosecute or issue a penalty), workers’ compensation litigation, and, depending on the circumstances, civil litigation.  This means that information collected immediately after an accident (such as photographs or measurements of the accident scene) or as part of an internal investigation can be privileged if the dominant purpose in collecting it was to prepare for litigation that is reasonably anticipated.

Solicitor-client privilege, as its name suggests, requires the involvement of a lawyer.  This privilege applies to information gathered and exchanged for the purpose of obtaining legal advice.  As such, a lawyer may formally request an internal investigation in order to provide the organization with legal advice about the accident.  This privilege is often seen as “better” because it lasts forever, unlike anticipated litigation privilege which only lasts until the litigation ends or is no longer reasonably apprehended.

Regardless of which privilege may apply to the information, the information must be carefully and deliberately handled in order to maintain the privilege.  The dissemination of the information could mean the privilege has been waived and no longer applies.  Therefore, information that is intended to be privileged should be so labelled, kept in a secure location accessible to very few people, and not widely shared.  Specific instructions on the creation and maintenance of privilege can be given by legal counsel. In our view, experts should be retained by counsel to ensure creation and maintenance of privilege over their advice and reports.

Responding to Orders and Directions

Orders and directions are the most common enforcement mechanism used by OHS regulators to ensure compliance with OHS obligations following a workplace accident. OHS regulators can impose different types of corrective orders.  These can range from orders that are complied with before the officer leaves the workplace, to time-based orders that must be complied with by a specified date, to “stop” orders that may direct the stoppage of equipment, a task or practice, or even the entire workplace.  Employers that disagree with an order or direction have the ability to appeal against it within a certain time period, which could result in the order being confirmed, rescinded or varied.

Close attention should be paid to all orders and directions.  Compliance deadlines should be recorded and compliance tracked.  As part of the employer’s accident response, the correctness of the order or direction should be assessed promptly to ensure that steps can be taken to challenge it within the time period to appeal.

Responding to Administrative Monetary Penalites

The use of administrative monetary penalties (“AMPs”) as a way to enforce occupational health and safety obligations, is growing across the country. Certain jurisdictions such as Nova Scotia, British Columbia, Alberta, Manitoba and the Yukon impose AMPs on various workplace parties for violations of occupational health and safety obligations. Indeed, in British Columbia, AMPs are currently the principal method of penalizing OHS contraventions and they could become a very common feature in the enforcement of the Canada Labour Code when the AMP provisions become effective for federally regulated workplaces.

AMPs differ from occupational health and safety prosecutions in that they generally only require that the occupational health and safety regulator gather evidence of the alleged violation and either issue a notice of penalty at his or her discretion, or submit the evidence to either a tribunal or the director of the health and safety branch of government to determine whether an AMP will be issued.  They do not require or result in court proceedings and do not require the regulator to prove the contravention beyond a reasonable doubt. Employers should be aware of appeal or deadlines for AMPs, and grounds for appeal (including due diligence assertions where applicable) in order to seek the removal or reduction of the penalty amount. Considering appeal of AMPs should be an included element of accident response.

Statements: The Conundrum

After an accident, police and OHS officials will wish to interview and take statements from all direct witnesses, and will sometimes request statements from supervisors or senior management.  Managing this process can be difficult because the police and OHS regulators have differing powers when it comes to interviewing people.  It is also a challenge to manage because the individuals who may be requested to meet with the OHS regulator or police may be required to do so (in the case of the OHS regulator) or may choose to do so (when asked for an interview by the police).  It can also be challenging because the OHS regulator and police may work closely together or in tandem making it more challenging to identify whether the interview is mandatory or voluntary.  In such circumstances, it may be prudent to have the Accident Response Coordinator ask questions about the interview request to determine who is requesting the interview and whether attendance is mandatory. This can then be communicated to the involved witness. 

The issue of interviews of supervisors, senior managers, officers or directors is virtually always a matter for which specific legal advice should be sought.  Such requests send up red flags that personal charges against senior representatives could be contemplated, may indicate that systemic issues are being investigated, and may signal possible individual or corporate criminal charges are being considered if the police are seeking to interview such people.  In each case the decision on how to manage such interviews must be made carefully.  It may require a balancing of the risk of prosecution for declining, the positive information that could be given, and possible problematic comments or admissions that could be made. Potential response strategies should be discussed and considered with counsel.

If and when supervisors and senior management decide to participate in an interview it is prudent to have legal counsel present (though this may have to be different legal counsel than is advising the employer).  At that time, inquiries of investigators can be made to attempt to determine if they have grounds to believe the individual or the organization have committed an offence, so they may have this information in deciding whether to participate in the interview.

The OHS Regulator or Police Have a Warrant to Search!

Sometimes, the authorities may be required to obtain a warrant to search for and seize items or documents. If the police or an OHS inspector arrive with a warrant the Accident Response Coordinator should review the warrant carefully and should promptly provide a copy of the warrant to legal counsel.  The review should include particular elements of the warrant including the date(s) the warrant is permitted to be executed, the location(s) to be searched, the nature of the item(s) to be searched for, and any other conditions on the search. A record of the items seized should be made and the Accident Response Coordinator should ask to copy any materials being seized pursuant to the warrant, where possible.

For an OHS regulator, the execution of a search warrant is a very clear indication of intent.  It means that prosecution is very likely, if not inevitable.  It should mean a very clear shift in how the organization interacts with the regulator as compelled compliance or cooperating in any further investigating is likely no longer required.  That said, the rights about search and seizure and ongoing interactions with the regulator can be complicated.  Close, ongoing support from experienced OHS legal counsel is recommended.

Conclusion

A serious workplace accident can be one of the most challenging circumstances for an employer to address.  As discussed above, a multitude of issues can rapidly arise and develop.  These issues can and should be managed within an Accident Response Plan in order to best minimize ever- increasing OHS risks.  Recent workplace accidents in Canada have provided numerous examples of criminal and OHS proceedings resulting in astoundingly high fines and penalties, daunting terms of corporate probation, and reputational harm. However, being thoroughly prepared to implement a considered and strategic response to any accident that may occur will best position the employer to avoid such devastating outcomes.

The content of this Advisor is not intended to be relied upon as legal advice. In the event of a serious workplace accident, immediate and specific legal advice should be sought by employers and management, from specialized OHS legal counsel, in relation to OHS laws and practice of the particular jurisdiction in which the incident occurred, or which apply to the workplace.

Any member of our national OHS and Workers’ Compensation practice group may be consulted on matters of serious workplace accidents.

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[1] This term and other terms utilized in this Advisor were first developed by one of the authors, and have since become common for describing accident planning documents, strategies, and involved personnel.

[2] The title given to the person/people in this role can be whatever the organization chooses. It is the functions of the role that are important. Often trained OHS or HR managers HR will fulfill this role.

[3] Section 40 of the Alberta Occupational Health and Safety Act , generally, prohibits the use of such reports in a prosecution