On July 1, 2021 O. Reg. 420/21, Notices and Reports under Sections 51 to 53.1 of the Act – Fatalities, Critical Injuries, Occupational Illnesses and Other Incidents (the “Regulation”), under the Ontario Occupational Health and Safety Act (“OHSA”) comes into force.
The new Regulation aims to consolidate the reporting requirements of all workplaces covered by the OHSA (construction projects, industrial establishments, mines, etc.). The Regulation also incorporates the definition of “critical injury”, which had previously been defined in its own regulation.
The Regulation revokes the notice and reporting provisions in several industry specific regulations, including:
- O. Reg. 429/21: Farming Operations
- O. Reg. 426/21: Construction Projects
- O. Reg. 427/21: Health Care and Residential Facilities
- O. Reg. 428/21: Diving Operations
- O. Reg. 421/21: Industrial Establishments
- O. Reg. 422/21: Mines and Mining Plants
- O. Reg. 423/21: Oil and Gas – Offshore
- O. Reg. 425/21: X-Ray Safety
- O. Reg. 424/21: Window Cleaning
Reporting obligations, including the contents of the report, are now relocated to the new Regulation. Additional reporting requirements are included for diving operations, construction projects, mines, and x-ray safety.
Under section 3 of the Regulation, employers must provide a written report or written notice if:
- a worker is killed or critically injured from any cause at a workplace;
- a worker is disabled from performing his or her usual work or requires medical attention because of an accident, explosion, fire or incident of workplace violent at a workplace, but no person dies or is critically injured because of that event; or
- the employer is advised by or on behalf of a worker that the worker has an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker.
Interestingly, this new section appears to contain a key wording difference from the statutory notice and report requirements under the OHSA. Pursuant to section 51 of the OHSA, an employer must notify Ministry of Labour, Training and Skills Development immediately “where a person is killed or critically injured” and, within 48 hours, provide “a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.” The new Regulation, however, prescribes the required contents of a written report where a worker is killed or critically injured.
The Regulation also provides a new clarification with respect to reporting obligations in the event that a worker is involved in a motor vehicle accident. Certain prescribed forms of written report or notice will not apply in cases where a worker suffers an injury as a result of a motor vehicle collision on a highway, as defined under the Highway Traffic Act, or on the private toll highway known as Highway 407, unless:
- the worker affected was working at a project; or
- the worker affected was not travelling in the motor vehicle at the time of the collision.
We may yet see further clarification on these differences in wording between the Regulation and OHSA requirements. Indeed, the Regulation appears to address developments in case law where the Courts have tried to bring some common sense to the broad requirements of the statute. That said, the Regulation does not eliminate the requirement under section 51 of the OHSA to immediately report instances where a person has been killed or critically injured at a workplace, whether or not the person is a worker. Suffice to say, employers are encouraged to seek legal advice on reporting obligations immediately in the event of a workplace safety incident.
The new Regulation revokes Regulation 834 “Critical Injury – Defined” and imports the definition into the new Regulation. For the purposes of reporting an incident, “critically injured” is defined as an injury of a serious nature that:
- places life in jeopardy,
- produces unconsciousness,
- results in substantial loss of blood,
- involves the fracture of a leg or arm but not a finger or toe,
- involves the amputation of a leg arm, hand or foot but not a finger or toe,
- consists of burns to a major portion of the body, or
- causes the loss of sight in an eye.
The wording of the definition remains unchanged. Interestingly, the new Regulation does not incorporate the Ministry of Labour, Training and Skills Development’s 2017 “Clarification”, in which the Ministry took the position that the fracture or amputation of more than one finger or toe constituted a critical injury for reporting purposes.
The Regulation requires employers and constructors to retain copies of a written notice or report prepared under the OHSA for at least three years after the date the notice or report is made.
If you have any questions regarding this development or any other workplace law issues, please do not hesitate to contact a Mathews Dinsdale lawyer.
The author gratefully acknowledge the assistance of Liam Billings, a Summer Student in the firm’s Toronto office.