Interpretation of Regulation 834 to the OHSA – Critical Injury

It is well known that an employer has a duty to report incidents of workplace injury or illness (including deaths in the workplace) to the Ministry of Labour (“MOL”) Specifically, section 51 (1) of the OHSA states:

Notice of death or injury

51 (1) – Where a person is killed or critically injured from any cause at a 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 forty-eight 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…

Regulation 834 of the OHSA defines “critical injury” as follows:

“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 or arm 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.

Employers have expressed concerns with the definition of “critical injury” and potential grey areas with respect to certain serious injuries. In response to those concerns, the MOL recently published a document entitled “Clarification on the Definition of Regulation 834: Critical Injury”, in which it explains:

  1. Clause 1(d) – The MOL indicates that it will interpret the phrase “fracture of a leg or arm” to include the fracture of a “wrist, hand, ankle or foot”. This means that if an employee fractures a “wrist, hand, ankle or foot”, an employer’s duty to notify the MOL will be triggered.
  2. Clause 1(d) – The MOL indicates that it will treat the fracture of “more than one finger or more than one toe” as a critical injury if it is an injury of a “serious nature”. The MOL has not provided further guidance regarding the interpretation of the phrase “serious nature”.
  3. Clause 1(e) – The MOL indicates that if the amputation of “more than one finger or more than one toe” will constitute a critical injury if it is an injury of a “serious nature”.

The MOL’s publication suggests that that discretion will be afforded to employers to determine whether or not an injury meets the “of a serious nature” threshold, on a case-by-case basis. It also suggests that MOL Inspectors who are reviewing the actions of an employer will have discretion to retroactively determine whether an employer erred in making its determination as to whether or not an injury met the “of a serious nature” threshold.

While the MOL’s publication does not technically constitute law, employers should be aware of how certain classifications of injuries will be treated by the MOL and its Inspectors.

A full version of the MOL’s publication regarding Regulation 834 can be found here: https://www.labour.gov.on.ca/english/hs/critical_injury.php

As seen in our April Be Safe Newsletter

Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates

Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance.


 

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