The Ontario Occupational Health and Safety Act requires employers to report fatalities and “critical injuries” to the Ontario Ministry of Labour.
The Ministry of Labour has recently released clarification on its interpretation of “critical injury” — in particular, clauses 1(d) and (e) of the definition of “critical injury.” It is important to note that this is not an amendment to the definition of “critical injury"; rather, it is an update to the Ministry of Labour’s internal interpretation, which interpretation courts do not have to accept.
Section 1 of Ontario Regulation 834 under the OHSA defines “critical injury” as 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.
Clause 1(d) states that a “critical injury” includes the fracture of a leg or arm but not a finger or toe. The Ministry of Labour has clarified that it interprets the fracture of a leg or an arm to include the fracture of a wrist, hand, ankle or foot. In addition, while clause 1(d) excludes the fracture of a finger or a toe, the Ministry of Labour takes the position that the fracture of more than one finger or more than one toe does constitute a “critical injury” if it is an injury of a serious nature.
Clause 1(e) provides that a “critical injury” includes the amputation of a leg, arm, hand or foot but not a finger or toe. While the amputation of a single finger or single toe does not constitute a critical injury, the Ministry of Labour interprets the amputation of more than one finger or more than one toe to constitute a “critical injury” if it is an injury of a serious nature.
Notwithstanding the fact that the Ministry of Labour’s interpretation of “critical injury” is just that — the ministry’s interpretation, not the law — employers should be aware of the ministry’s interpretation in order to avoid a failure-to-report charge under the OHSA.
Chelsea Rasmussen is an associate at Dentons’ Toronto office, practising in employment and labour law. She advises and represents employers in all aspects of occupational health and safety matters, and defends employers charged with safety offences. Chelsea provides strategic advice in respect of workplace accidents, compliance orders, administrative penalties or charges, and day-to-day compliance. She can be reached at firstname.lastname@example.org
or (416) 862-3464. For more information, visit www.dentons.com