Accident response strategies
Employers should also develop an accident response plan. While these plans do not eliminate the consequences of the accident, they can mitigate its consequences by ensuring that legal obligations are met when responding to an accident attracting a police or regulatory response. 

A sophisticated accident response plan can also help employers balance their obligations to co-operate with regulatory officials with the substantive legal rights that may arise when the police or the ministry are investigating an alleged regulatory or criminal offence.  At a minimum, an accident response plan should include information and training for front line personnel to ensure that statutory OHS notification, accident reporting requirements and obligations to preserve the scene are met. 

The accident response plan should establish a single point of contact for police and regulatory inspectors. This contact person should respond to requests for documents, materials and access to the scene and witnesses. He or she can regularly communicate with legal counsel, attend witness interviews where possible, and ensure that all enquiries are fulfilled by the provision of information, policies, training documents and other material demonstrating the reasonable steps taken. 

The plan should require the contact person to seek external advice and assistance on key legal aspects of the investigation, including when the employer is obligated to provide requested documents or information, on what grounds it may refuse (e.g. solicitor-client privilege, litigation privilege, etc.) and when a court order or warrant is required. The plan should also provide for the creation, collection and preservation of evidence independent of the police or ministry investigation as part of a separate corporate accident investigation, including an independent review of the undisturbed accident scene to develop alternate theories of causation. 

The criminal charges against Millennium Crane serve as a reminder that employers and individuals continue to face the risk of a criminal investigation, and the prospect of reckless behaviour being treated as a crime after a workplace accident. Educating supervisors and senior officers about their health and safety duties, conducting a pre-emptive due diligence review and preparing an accident response plan can help employers to mitigate this risk.  

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Cheryl A. Edwards is a former Ontario Occupational Health and Safety (OHS) prosecutor, a partner in Heenan Blaikie LLP’s Labour and Employment Group and lead the firm’s national OHS & Workers’ Compensation Practice Group. Cheryl can be contacted by e-mail at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or by telephone at (416) 360-2897.

Shane D. Todd is an associate in Heenan Blaikie LLP’s Labour and Employment Group and a member of the firm’s national OHS & Workers’ Compensation Practice Group. Shane can be contacted by e-mail at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or by telephone at (416) 643-6958.

Jeremy Warning is a senior associate in Heenan Blaikie LLP’s Labour and Employment Group and a member of the firm’s national Occupational Health & Safety & Workers’ Compensation Practice Group. Jeremy may be contacted by e-mail at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or by telephone at (416) 643-6946.