If you've ever experienced a reportable accident at one of your work sites in Alberta, you'll know that one of the first things Workplace Health and Safety (OHS) will ask for is a copy of the hazard assessments you completed that day, and inevitably, a copy of your investigation report into the accident. Some investigators go even further, and specify what they want to see in that investigation report, referencing such things as root cause and/or contributing factors.

As an employer or the safety professional handling the investigation, what do you do?

First, let's be clear on one thing. Just because OHS may ask for something, that doesn't necessarily mean they are entitled to it. The fact is, OHS has no statutory authority to ask for an investigation report that provides anything other than the "circumstances surrounding the injury or incident" and "corrective action taken to prevent a recurrence".

Yet, in an effort to "comply" with or appease the OHS officer's request (and to demonstrate that they've got "nothing to hide"), we often see employers providing an investigation report that goes far beyond those two factors, and includes a laundry list of employer shortcomings and/or in some cases, the proverbial "smoking gun" - even if it might not seem like it at the time. While it is true that there is a statutory prohibition preventing the Crown from tendering such a report as evidence in future proceedings, that doesn't change the fact that both the investigating officer and Crown are aware of what was in the report, or the potential for them to secure that evidence elsewhere, albeit in a different form. Simply put, providing more information than necessary in the investigation report you give to OHS is, in our experience, rarely a good idea, and is often rife with pitfalls. 

That being said, identifying shortcomings and/or recognizing smoking guns isn't something employers should shy away from. On the contrary, doing so is an important part of an effective health and safety program, and establishing (and at times proving) due diligence. However, it's just as important for employers to recognize the potential legal implications of doing so, and to ensure they're protecting themselves to the full extent permitted by law, through things like legal privilege

As we've mentioned in previous posts, it's nuances like this that are crucial for employers to understand, and that further underscore the importance of retaining experienced OHS counsel like F2 Legal Counsel immediately following an accident. Doing so allows you to prepare two investigation reports: one for the employer/counsel's eyes only, that is protected by legal privilege; and one for OHS, that complies with the "circumstances surrounding" and "corrective action taken" requirements of the Occupational Health and Safety Act.

The end result? OHS isn't getting more information than they're entitled to, and you're able to identify (and fix) shortcomings and/or smoking guns, without accidentally shooting yourselves in the foot.

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