Publication

Serious Workplace Accident? 3 Reasons to Get Legal Counsel – Immediately

Published:

September 20, 2023

Author(s):

David Eaton, KC, Q. Arb

You’ve experienced a workplace accident that’s resulted in serious injury to, or worse the death of, an employee. Do you need legal counsel now – or should you wait until you understand what happened and the Occupational Health and Safety investigators finish their investigation? Here are three reasons to retain legal counsel immediately after a serious workplace accident.

1. High Stakes

Significant business and legal consequences can flow from what’s happened:

You must immediately report the accident so it’s likely an OHS investigation will also start immediately.
In many cases, the OHS investigators will quickly issue stop work orders shutting down your entire operation or, if you’re lucky, just the part where the accident occurred.
They will start to make requests or orders for you to produce documents relating to your safety policies and procedures, employee training records, hazard assessments, safety meetings, toolbox talks and other documents.
If the circumstances suggest, either immediately or as the OHS investigation develops, OHS investigators might involve the police to investigate the more serious criminal offence of criminal negligence.
If you’re later charged and ultimately found guilty, not only does the employer organization face huge fines; its directors, officers and supervisors could also face fines – and even jail time – personally, as the 2023 N.B. decision in R. v. King illustrates.

Most employers aren’t equipped to know the likely issues they’ll have to address if charges are brought against them. Most won’t know the process these cases follow. Most won’t know whether they’re legally obligated to cooperate in investigations. Most won’t know whether or when they have a right to legal counsel. Most won’t know the documents to collect or the questions to ask to gather essential information. There could be information that, if presented to the investigators, could favourably influence the outcome of their investigation. There could be mitigating factors that, while not a full defence, could significantly reduce any penalty you might face. Even if you initially conclude you have some exposure for breaches of OHS or criminal laws, you could face charges that are inappropriate or go beyond anything for which you believe you should be liable. If you’ve done nothing to prepare, you’ll be greatly disadvantaged in defending any charges you ultimately face or mitigating the huge fines to which you’re exposed if found guilty.

2. Focus on Your Defence

For all regulatory offences the Crown must prove a particular provision of a law has been breached. If so, a defence of due diligence – that reasonable care was exercised in the circumstances – is always available. But investigators, whether OHS or police, focus on determining whether there are reasonable grounds to lay charges. If they do, their goal is to gather the evidence to support that conclusion. They’re rarely interested in searching for evidence that’s exculpatory, either in relation to the act itself or the degree of diligence.

And these investigations take time. It will be months, possibly years, before the OHS investigators or the police decide whether to charge you for regulatory offences under OHS legislation or even criminal offences under the Criminal Code of Canada. But in far too many cases, by the time charges are brought key witnesses have moved on and are difficult or impossible to locate. Even when they’re located, memories have faded and they can’t recall important details at all or with enough clarity to be helpful. Leaving the search for and gathering of evidence you need to defend yourself until after charges are brought will, in most cases, leave you severely handicapped. The time to conduct your own investigation is immediately after the accident.

3. Solicitor-Client Privilege Protection

At times, employers that have conducted their own investigation have been required to provide their results to OHS investigators. But by involving legal counsel as soon as possible post-accident, you can conduct your own investigation and maintain solicitor-client privilege over it. Your witness interviews and internal discussions can remain confidential and protected. All documents that could be important to address your potential liability can be identified, collected, and retained in a safe and secure location. With your own privileged investigation and legal counsel’s assistance you’ll be much better prepared for what you might face and how to deal with it.

Please contact your McInnes Cooper lawyer or any member of our Occupational Health & Safety Team @ McInnes Cooper to discuss what to do if there’s a workplace accident.

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Serious Workplace Accident? 3 Reasons to Get Legal Counsel – Immediately

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