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ONTARIO HEALTH AND SAFETY: REPORTABLE ACCIDENTS EXPANDED DUTY TO REPORT AND PRESERVE

In 2011 the Ontario Courts agreed with a decision by the Ontario Labour Relations Board that if a person including a customer or patron, is injured while at the workplace of someone else that the workplace must notify the Ministry of Labour and preserve the scene.

The implications of this decision are far reaching and the following information will assist in knowing when you must report and preserve the scene.

In 2011, the case of Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board was heard by the Ontario Divisional Court. They were asked to review the decision of the Ontario Labour Relations Board.

On Christmas Eve in 2007, a guest of Blue Mountain Resort drowned in an unsupervised swimming pool at the resort. There were no workers present at the pool or in the area of the pool.

Blue Mountain never reported the occurrence to the Ministry of Labour or any other division as it was believed that because the person who drowned was not a worker that the provision to report did not apply.

Section 51(1) of the Occupational Health and Safety Act provides the duty to report as follows:

Where a person is killed or critically injured from any cause at workplace, the constructor, if any, and the employer shall notify an inspector, and the committee health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within 48 hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.

It was concluded by both the inspector at the Ministry of Labour, the Board and the Courts that “person” is not just a worker, but included a guest at the resort.

The inspector, the Board and the Courts also agreed that the workplace was any place on the Blue Mountain Resort premises that work was done. That being said the unsupervised pool that the guest drowned in was included as a workplace because workers at Blue Mountain did work on and in the pool (i.e. painting, cleaning, and maintenance) and therefore there was a requirement to report the drowning and death. This is despite the fact that at the time of the drowning that no work was done on the pool by any employee or person.

A) When to Report

It is obvious that if an employee is critically injured or killed while working at a retail store, then the Ministry of Labour must be notified, but the above case and the law as it stands means that if anyone is critically injured or killed at a retail store in Ontario then this also must be reported to the Ministry of Labour.

Critical Injury is a defined term as follows:

1. For the purposes of the Act and the Regulations,

“critically injured” means an injury of a serious nature that,

(a) Places life in jeopardy

(b) Produces unconsciousness,

(c) Results in substantial loss of blood

(d) Involves the fracture of a leg, arm, hand or foot, but not a finger or toe

(e) Involves the amputation of a leg, arm, hand or foot, but not a finger or toe

(f) Consists of burns to a major portion of the body, or

(g) Causes the loss of sight in an eye

It must be known that the injury is critical. Therefore, if at the time there is no fracture known, then there is no reporting requirement.

Examples includes things like, a customer trips and falls and is knocked unconscious, a co-op student is injured when items fall from the shelves, a child is hit in the parking lot by another vehicle, a delivery person accidentally comes into contact with hazardous material and receives a chemical burn, any injury that happens on the premise of a Canadian Tire store and its parking lots, loading areas etc that results in critical injury or death must be reported. The list of who is included is exhaustive and includes, vendors, visitors, site inspectors, volunteers and anyone else on the premises and remember it does not have to be an accident that triggers the need to report, but is any incident regardless of whether the incident was as a result of anything faulty at the workplace.

How the workplace is defined by the Court is based on is based on a case by case basis. However, for the purposes of the Canadian Tire Dealer Association it includes the area of the store, delivery and loading and the parking lots (in shared parking lots that would have be looked at on a case by case basis).

B) Preservation of the Scene

If the incident is reportable then there is duty to not touch anything surrounding the incident, except getting the person medical attention. This means that no one can go into the area that the incident happened regardless of any disruption this may cause. This includes workers and customers.

This duty to preserve the area is found at section 51(2) Act and is as follows:

51(2) Where a person is killed or is critically injured at the workplace, no person, shall, except for the purpose of

(a) Saving life or relieving human suffering

(b) Maintaining an essential public utility service or a public transportation system

(c) Preventing unnecessary damage to equipment or other property

Interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence unless permission so to do has been given by the inspector.

Once the all clear is received by the inspector from the Ministry of Labour has done so then can the area be re-opened or even touched. Sometimes the ability to clear the area is done via phone before the inspector even arrives at the scene.

C) Penalties for Failing to Report and/or Preserve

The penalty for not reporting and failing to preserve is a maximum fine of $500,000 for a corporation and is specifically provided for in the legislation as follows:

Penalties

66. (1) Every person who contravenes or fails to comply with,

(a) a provision of this Act or the regulations;

(b) an order or requirement of an inspector or a Director; or

(c) an order of the Minister,

guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both.

Idem

(2) If a corporation is convicted of an offence under subsection (1), the maximum fine that may be imposed upon the corporation is $500,000 and not as provided therein.

Therefore, if there is a critical injury as defined above that results on the premises then it must be reported, regardless of the cause. The area must be cordoned off and preserved until the inspector from the Ministry of Labour authorizes the area to be opened.

D) Expanded Duty to Report

Based on the above and by analogy, the employer i.e. Canadian Tire has also to report injuries that required medical attention that arise out of violence at the workplace, accident, explosion or fire. Section 51(2) of the Act provides as follows:

52. (1) If a person is disabled from performing his or her usual work or requires medical attention because of an accident, explosion, fire or incident of workplace violence at a workplace, but no person dies or is critically injured because of that occurrence, the employer shall, within four days of the occurrence, give written notice of the occurrence containing the prescribed information and particulars to the following:

1. The committee, the health and safety representative and the trade union, if any.

2. The Director, if an inspector requires notification of the Director. 2001, c. 9, Sched. I, s. 3 (12); 2009, c. 23, s. 5.

The above are for cases where the injury is not a critical injury. The triggering event is that the person requires medical attention and the reason for that medical attention is due to an accident, explosion, fire or violence in the workplace. There is no requirement again that the “person” be an employee, worker or volunteer.

There does not seem to be any requirement for preservation, given that the reporting must be done in four days of the event that triggers this section and therefore, direction should be taken from the Ministry of Labour when it is reported.

E) Strategies:

There are two categories of reporting incidents.

a) Critical Injury or Death

The occurrences that result in critical injury and death require it to be reported immediately and the area of the occurrence must be preserved. This is regardless of whether the person injured is an employee and/or worker, or a patron. Any person on the premise of Canadian Tire who has an occurrence that result in critical injury or death, Canadian Tire must report it to the Ministry of Labour.

The area must be preserved and the only thing that can happen is the injured person is attended to seek medical attention.

The above must be clearly told to the supervisors and information on how to contact the Ministry of Labour need to be provided.

When speaking with Ministry of Labour the following should be provided for the Ministry of Labour to know the circumstances.

1) The occurrence does not involve a worker or contractor within the company

2) The occurrence is not as a result of a work related activity or involve anyone physically working at that time including using work related equipment

3) The nature of the injury and what is presently being done

4) The fact that the area is being preserved

5) If the person is obtaining medical attention

Upon providing this information an enquiry could be made to the inspector as to whether the area needs to continue to be preserved and the area could be released over the phone prior to the inspector physically arriving at the scene.

An enquiry should also be made as to whether they require a formal written report (in the 48 hour period) and again the inspector may decide that it is not required.

Detailed records of this information, who at the Ministry it is provided to and the response to the enquiries must be recorded meticulously, as it is possible for the inspector to overstep their bounds and release the area from preservation and/or not require a written report, when the Ministry of Labour does require them.

b) Injury Requiring Medical Attention.

It is the writer’s opinion that despite the four day provision provided in the legislation for accidents that do not result in critical injury of death but still require medical care that they be reported as soon as possible.

For non-critical injuries to be reportable one of the following two items need to be in play:

1) The Person requires medical attention or

2) Person cannot return to work

While the second item will not be known at the time, it will be known if the person requires medical attention. This includes even hearing that the person is attending the hospital despite an ambulance not being called.

Once it has been established that medical attention has occurred then it must be determined if the injury/injuries require the medical attention arise as result of one of the four items below:

1) Accident

2) Explosion

3) Fire

4) Incident of violence at the workplace

The requirement to report is in writing in the forms prescribed. These forms should be readily available

F) Conclusion

While the law in Ontario has placed an onerous burden on retailers, the penalties for non-compliance are just as onerous. The retailers and all employers should err on the side of caution and report all incidents that are described in the above legislation. This reporting requirement however is only the law in Ontario and other jurisdictions must be reviewed based on the relevant caselaw interpreting their Health and Safety laws.

Author: Monica Chakravarti

Date: December 20, 2012

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