WHAT THE LAW SAYS
The OHS laws give safety officials broad powers to enforce the laws and carry out their other duties. These powers generally include the authority to enter premises, ask questions, test equipment, take photographs and request documents related to a company’s health and safety performance, says Conlin. For example, Sec. 8(1) of Alberta’s OHS Act says that a safety official may: > At any reasonable hour, enter into or on any work site and inspect it; > Require the production of any records, books, plans or other documents that relate to workers’ health or safety and may examine them, make copies of them or remove them temporarily to make copies; > Inspect, seize or take samples of any material, product, tool, appliance or equipment being produced, used or found in or on the worksite that’s being inspected; > Make tests and take photographs or recordings in respect of any worksite; and > Interview and obtain statements from people at the worksite. If you fail to cooperate with a safety official who’s exercising these powers by, say, not allowing them to enter the premises or refusing to turn over requested documents, you and the company can be liable for obstruction. However, safety officials must also respect the rights of individuals and companies when they exercise their powers under the OHS laws. Thus, the powers set out in Sec. 8(1) of the Alberta OHS Act and analogous provisions in other jurisdictions’ OHS laws generally can be exercised only when the safety official is conducting routine audits or inspections. Safety officials may not exercise their OHS inspection powers when conducting investigations that could lead to regulatory or criminal charges against the company and/or individuals. Explanation: When conducting routine audits and inspections, safety officials are trying to ensure that the company is complying with the OHS laws, a legitimate exercise of authority justifying use of the powers provided for in the OHS laws. But sometimes the purpose of their inquiry is not to verify the company’s current compliance but to determine if it has committed a violation or, if the government has already determined that a violation has occurred, to gather evidence to use in the prosecution. In this kind of inquiry, the inspection powers under the OHS law don’t apply; instead, the inquiry is considered a prosecutorial or criminal investigation. And once the line is crossed from routine inspection to investigation, the legal rights of the defendant or potential defendant are triggered. For example, safety officials don’t need a search warrant to get into a plant to conduct a routine inspection under the OHS law. But if they want to get into the plant to gather evidence to use to prosecute the plant owners, they generally do need a search warrant. Drawing the Line Between Inspection & Investigation Understanding the distinction between inspection and investigation activities is the key to determining how to react when a safety official asks for a copy of your incident report. If the official is conducting a routine inspection, you may have to disclose the report or face liability for obstruction (assuming that the report isn’t privileged, which we’ll discuss below.) But if the official is acting as an investigator carrying out prosecutorial responsibilities, you may be able to avoid turning over the report by invoking your right against self-incrimination. So all you have to do when responding to a request for an incident report is figure out if the safety official is acting as a safety inspector or investigator. Of course, it’s not always easy to tell the difference between an inspection and an investigation. That’s particularly true in Ontario, says Conlin, where safety officials wear two hats—that is, the same officials conduct both routine workplace inspections and incident investigations. So a safety official may claim that he’s requesting a copy of your incident report as part of an inspection when, in reality, he’s investigating the incident in preparation for a prosecution. And the difficulty safety coordinators experience in distinguishing between these two functions isn’t unique to Ontario, notes Conlin. Variations of the problem exist across Canada, he says. The Case Law When are safety officials acting as inspectors and when are they acting as inspectors? In 2001, the Ontario Court of Appeals tackled this issue in the landmark Inco case. The court ruled that when an official has a “reasonable belief” that a company or an individual has violated a regulatory law, such as an OHS regulation, and is gathering evidence for the prosecution of that violation, the official may no longer rely on his inspection powers. Although this rule sounds straightforward, applying it in actual cases has proven more difficult. Conlin says that the courts don’t want to hamstring inspectors and have often admitted into evidence documents seized by an inspector even in situations where the court concluded that the inspector should have obtained a search warrant. So in Ontario at least, the Inco warrant protections haven’t done much to help employers prevent inspectors from seizing documents. The MOL has repeatedly taken the position that an inspector is entitled to seize incident reports after an incident without a warrant, says Conlin. But a recent Ontario case illustrates that, under certain circumstances, courts and other quasi-judicial bodies may be willing to at least consider a company’s right not to disclose an incident investigation report. The case involved an Ontario Power Generation (OPG) worker who suffered burns to his hand, forearm and upper chest when he shone a flashlight into a malfunctioning piece of equipment, causing an arc flash. OPG reported the incident to the Ministry of Labour (MOL), although it wasn’t legally required to do so. An MOL official went to the worksite and asked a supervisor for a copy of the preliminary internal report. The supervisor followed company procedure and tried to contact someone in management with the power to authorize the report’s release. But no one with such power was available. So he turned over the preliminary report to the MOL official. The official then issued orders for certain documents, including all notes, photos, statements and reports regarding the incident. OPG complied with all the orders except the one for the incident-related documents. Instead, it challenged the official’s authority to demand these documents and asked the Labour Relations Board to suspend the order until the issue was resolved. The Board suspended the order, ruling that the “law in this area is quite unclear and inconsistent.” It also noted that if OPG was compelled to turn over these documents now, its challenge to the order would be moot. Plus, the official already had a copy of the preliminary report [Ontario Power Generation Inc. v. Power Workers’ Union]. The OPG case is significant, says Conlin, because the legal threshold for getting an inspector’s order suspended is very high and suspensions are rarely granted. He believes that part of the reason for the suspension of the order in this case is that the law in this area is unclear. It is my very strong view, Conlin adds, that privilege is a much better argument to protect an incident report from disclosure in court proceedings. We’ll explain more about privilege below.5 INCIDENT REPORT STRATEGIES
The question of what to do when a safety official requests an incident report is just one part of the story. There are also proactive steps that companies can take to minimize the risk of having to disclose their incident reports to safety officials—or of even being asked for them in the first place. Here are five strategies for avoiding and handling incident report issues: Strategy #1: Create Incident Response Plan You shouldn’t just “wing” key decisions about whether to turn over an incident investigation report, warns Conlin. Instead, your company should have an incident response plan that spells out what procedures should be followed after a safety incident occurs. One of the things the plan should address is the creation of incident reports and their disclosure to safety officials. In particular, you don’t want workers or line supervisors making off-the-cuff decisions on what to turn over to safety officials, says Conlin. Because of the implications of such decisions, someone higher up in the organization, such as the safety coordinator, incident coordinator or corporate counsel, should make such decisions. Make sure that workers and supervisors know who they should contact about a request for an incident investigation report and how to contact that individual. And make sure that there’s a back-up plan if the decision-maker is unavailable. For example, in the OPG case, OPG had a procedure for such decisions and the line supervisor followed that procedure. Unfortunately, all the individuals with the authority to make the disclosure decision on OPG’s behalf were at a meeting and unavailable. So the supervisor opted to turn over the preliminary report rather than risk obstruction charges. Strategy #2: Only Report Incidents You’re Required to Report When you report an incident to the government, the odds of being investigated and asked to turn over your incident report increase. So another way to avoid having to disclose an incident report is to report only those incidents that the OHS law requires the company to report. For example, reporting an incident that the company wasn’t required to report was a key mistake that OPG made. In Ontario, only “critical injury” incidents must be reported to the government. Although the worker was burned, his injuries weren’t critical and he was back at work the next day. So the incident wasn’t reportable. But by voluntarily reporting the incident, OPG set the subsequent events in motion. If it hadn’t reported the incident, it may never have been faced with a request for its incident investigation report. So Conlin recommends that you don’t voluntarily report incidents when you don’t have to. However, Conlin cautions that if an incident is a close call, it may be better to err on the side of caution and report it. When reporting such an incident, Conlin suggests taking the position with the regulatory agency that the incident is not legally reportable. If you decide not to report the incident and the government finds out about it anyway, you and your company may be faced with a violation for failing to report a required incident in addition to any violations based on the incident itself, he explains. Insider Says: For more information on incident reporting requirements, see Insider, Vol. 4, Issue 8, p. 1. Strategy #3: Don’t Advertise Existence of Incident Report If safety officials know that you’ve created an internal incident report, they’re likely to ask for it. You shouldn’t conceal the fact that you’ve created such a report. But you also shouldn’t advertise the report’s existence, cautions Conlin. In other words, if a safety official asks point blank whether you have an incident report and you do, don’t pretend otherwise. But don’t volunteer that information, he advises. Strategy #4: Position the Report So That It’s Privileged Strategies #2 and #3 might help you prevent a government investigation or at least a request for your incident report. But you should also be prepared in case you do get such a request. One strategy you can use is to create the incident report in such a way that it will be “privileged.” And if the report is privileged, you won’t have to disclose it even if the safety official asks for it. There are two types of privilege that you may be able to use to shield incident reports from disclosure: the solicitor-client privilege and the contemplated litigation privilege. Solicitor-client privilege ensures that clients can speak candidly to their lawyers without fear that what they say will be disclosed to the government, a plaintiff or another third party. But simply handing a lawyer a copy of a document after it’s been created isn’t enough. For the privilege to apply, the document must have been created for the express purpose of rendering legal advice to the client. It must also have been created in confidence and kept confidential from third parties. Contemplated litigation privilege protects documents that are prepared for the purpose of potential litigation, such as a prosecution for safety charges under the OHS law. Thus, an incident report that has been prepared for the purpose of defending safety charges can be protected from disclosure even if a lawyer was not involved in the preparation of the document. As with solicitor-client privilege, the document must be kept confidential. Disclosure of the documents to parties outside of senior management may result in a finding that the privilege has been waived. Insider Says: For a more detailed discussion on incident reports and privilege, see Insider, Vol. 2, Issue 8, p. 1 and Vol. 4, Issue 4, p. 1. Strategy #5: Get Lawyer’s Advice after Officials Request Report If a safety official asks for an incident report, you can tell him it’s privileged if you have reason to believe that it is. But if he persists, you should get advice from your company’s lawyer, whether in-house counsel or an outside lawyer, before responding, says Conlin. The disclosure of incident reports and related documents is a legal minefield that you shouldn’t try to navigate without advice from legal counsel, he explains. Questions like whether the report is truly privileged and whether the safety official is conducting a routine inspection or investigation are complex ones over which even lawyers and courts are likely to disagree. So you or someone in management shouldn’t try to figure it out on your own. Example #1: A safety official asks you for an incident report. You think he’s acting as an investigator and deny the request. In fact, the official is acting as an inspector and is entitled to the report. So your denial could lead to obstruction charges. Example #2: You make the opposite mistake. You assume the official is acting as an inspector when, in fact, she’s investigating an incident with an eye toward prosecution. So you end up disclosing the report to the official when you didn’t have to, thus possibly hampering your company’s defence. A lawyer is also best suited to determine if the report is privileged. If the lawyer believes that the report is privileged, you would seal the report in an envelope and later provide it to a court for a final determination on whether the report is privileged and thus shielded from disclosure. Conclusion When a safety official demands an incident report, you’re caught between a rock and a hard place. The last thing you want to do is make the prosecution’s job easier by handing over a report that may be tantamount to a confession to a safety violation. But you also don’t want to be faced with an obstruction charge for refusing to turn over the report. There’s no simple solution to this problem. And in the aftermath of a safety incident, your focus as safety coordinator should be on figuring out what went wrong and taking reasonable steps to protect workers and prevent it from happening again. By following the above strategies, you won’t be distracted by requests for your investigation report but will still be able to protect the company’s interests. INSIDER SOURCE Ryan J. Conlin: Stringer Brisbin Humphrey, 110 Yonge St., Ste. 1100, Toronto, ON M5C 1T4; (416) 862-1616; RConlin@sbhlawyers.com. SHOW YOUR LAWYER Ontario Power Generation Inc. v. Power Workers’ Union, [2008] CanLII 20624 (ON L.R.B.), May 2, 2008 R. v. Inco Ltd., [2001] CanLII 8548 (ON C.A.), June 6, 2001
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