Although the details vary from province to province, all OHS laws require employers to extend some degree of co-operation to government officials when they investigate the workplace after an accident. In addition to directly violating the OHS law, an employer’s failure to co-operate arouses suspicions and makes a bad situation worse. On the other hand, the duty to co-operate is a vague concept without clearly defined boundaries. Consequently, employers who mean well might do things that inadvertently violate the duty to co-operate and thus subject themselves to liability for hindering or obstructing an investigation.
Consider the following scenario: An accident occurs at your workplace. An OHS official shows up to investigate. It soon becomes clear that the official is inexperienced or inept. Or maybe youmjust have grave misgivings about the way the official is handling the investigation. For example, you notice that the official is mishandling a piece of sensitive equipment. The equipment is a key piece of evidence and if it breaks it’ll harm the investigation. So you take it upon yourself to
correct the problem, for example, by removing the equipment to a safe location before it breaks. While you may think that you’re coming to the aid of an incompetent official, what you’re actually doing is exposing your company to the risk of liability for obstructing an OHS investigator.
Refinery Fined $10,000 for Obstruction
A New Brunswick oil refinery learned this lesson the hard way. The province’s Workplace Health and Safety Compensation Commission began an investigation of the refinery after a worker was killed on the job. The investigating officer suspected that a leveling cylinder from a man lift was the cause of the accident. He removed the cylinder and took it to a machine shop off the site of the refinery for testing. The cylinder was stored in a plastic tote box and secured with two locks.
The refinery general manager and construction site manager had concerns about the conduct of the investigation, especially the testing of the cylinder. They feared that further testing would destroy the cylinder. They also worried that somebody might steal or damage it. They were concerned because the cylinder was a key piece of evidence in the lawsuits over the worker’s death. They also knew that there were many parties involved in the litigation who had an interest in preserving the cylinder, including the refinery, the manufacturer, distributor and the company that leased the man lift containing the cylinder.
So, without telling the inspecting officer, the managers decided to remove the cylinder from the machine shop and take it back to the refinery where they could keep an eye on it. When the investigator found out what happened he became enraged and demanded the cylinder back immediately. The company complied and the cylinder was unharmed. But the Crown charged the refinery with obstruction and delay of anOHS investigator (under Section 33(a) of the New Brunswick OHS Act). The court ruled that removing the cylinder without permission obstructed the investigation.
The refinery said the managers didn’t mean any harm and that they were just trying to help.The investigator, the refinery claimed, was inexperienced and didn’t know what he was doing. Removing the cylinder was a good deed intended not to hinder but to help the investigation and keep the cylinder from being destroyed. But the court wasn’t buying it. A company can’t unilaterally assert control over an OHS investigation once it’s started because it’s unhappy with how it’s proceeding and thinks it
can “do it better,” the court explained. The court thus fined the refinery $10,000 [R. v. Irving Oil Ltd.].
The Right Way to Express Concerns
The moral of the New Brunswick case is that you and your staff need to be aware of the duty to cooperate. That means you must step back and let OHS investigators handle the investigation, even if you think they’re making a botch of the job. But while it bans you from doing anything to assert control over or compromise the integrity of the investigation, the duty to co-operate with an investigator does not require you to sit idly by and do nothing. If you have concerns or complaints over how the investigation is being conducted, you may:
Tell the investigator. The New Brunswick court in the Irving Oil case above acknowledged that “any citizen who feels, during the course of an investigation, under whatever legislation, that something is amiss, can very well bring that to the attention of the investigating officers to the point where in fact something which may have been overlooked is corrected.”
Tell the agency. You can also go over the investigator’s head and speak directly to an official from the government agency doing the investigation.
Speak to a lawyer. Last, but not least, you can and should talk to your lawyer any time you’re subject to an OHS investigation. You should also tell staff to raise any concerns they might have about an investigation with their supervisor or the company’s lawyer rather than confront a government official directly.
Show Your Lawyer
R. v. Irving Oil Ltd., N.B.J. No. 515, Nov. 7, 2001.