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Navigating the legal process following a workplace fatality

Angela Gismondi
Navigating the legal process following a workplace fatality

Nobody wants to think about a workplace fatality occurring within their organization, but the reality is they do happen and it’s important for employers to be equipped to respond appropriately when they do.

Sara Malkin, an associate lawyer at Mathews Dinsdale & Clark LLP, and Laura Russell, a partner at CompClaim, took the audience through the process of what happens when a workplace fatality or critical injury occurs during a session at the Partners in Prevention two-day conference and trade show held at the International Centre in Mississauga, Ont. The event was hosted by Workplace Safety and Prevention Services.

"It’s not just Occupational Health and Safety (OH&S) charges the company might be facing following a fatality," Russell pointed out.

The Ministry of Labour (MOL), the Workplace Safety and Insurance Board (WSIB) and the police will all show up on site to conduct investigations and have the authority to lay charges.

"It’s not just the MOL and the WSIB that will be interested when there is a fatality," explained Malkin, adding there may also be media presence. "You might have a police investigation and that could lead to criminal prosecution. We’re seeing more and more of that in the news these day. People are being charged criminally as well as OH&S when there is a fatality at the work site."

"If you think the WSIB will forget about it, it certainly will not."

Sara Malkin

Mathews Dinsdale & Clark LLP

The first thing to do following a fatality is to apply for a WSIB Form 7. Once a Form 7 is filed it’s referred to the regulatory services division and the regulatory services division will follow up. From there it’s referred to the validation unit, Malkin stated.

"So there are these extra levels of evaluation and assessment that you don’t get with a regular WSIB claim," she noted.

Investigations can occur concurrently and that can be overwhelming for a company who has just experienced a fatality. It is important to have a strategy in place before incidents occur, Malkin advised.

"Anything that you tell WSIB within the course of that investigation or assessment will likely be shared with the MOL and vice versa," Malkin said. "That’s important because the WSIB investigation and assessment is happening almost immediately while the MOL has a year to gather all of the information to lay a charge. I assume that they are asking WSIB what kind of information they are getting as part of the process because it’s going to help them if they are going to lay a charge."

Consistency and co-operation is key, she said, as is providing relevant information and documentation while not putting yourself or the company in jeopardy.

"If there is one point that I will convey, it’s if you’re telling one body something you want to make sure you’re telling everyone the same story," said Malkin. "While you do have an obligation to be forthright and to produce documentation that is requested of you, you don’t necessarily need to tell them absolutely everything."

After filing a Form 7, the company usually receives a letter from the WSIB. While WSIB letters tend to look similar, this letter is not like the others.

"They will mention the regulatory services division and this is going to be referred to the validation unit but it’s not impressed upon you just how important this letter is necessarily," said Malkin, adding they will ask questions related to the company’s health and safety program, operating procedures and training records.

The key, she explained, is to respond with due diligence answering all required questions.

"Before you hand anything over, do your own due diligence," she added. "You want to secure that information, you want to review it all, you want to check if it’s privileged."

One important thing to do, she noted, is to appoint a contact person.

"There should be one person or a few people who are specifically appointed to correspond with the WSIB, somebody who is competent in doing so, somebody who understands the potential ramifications of what could happen and who can review all of that documentation with due diligence and with the right lens to best protect the liabilities of the company," Malkin stated. "This should be done in a timely fashion. It’s not the kind of thing you can ignore or not respond to. If you think the WSIB will forget about it, it certainly will not. You want to be able to have that contact person you trust, who can vet the information before its going outside of the company."

Then comes the decision letter from the WSIB. The board considers themselves an investigatory body so they will evaluate the information and render a decision as to whether or not that fatality was in fact traumatic and whether or not a fatal premium penalty will apply.

"Something to think about is that only employers who are otherwise in a rebate position will receive that surcharge," Malkin noted. "So if you are already a ‘bad employer’ and you are not in a rebate position, this fatal claim premium adjustment is not going to apply to you."

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