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Lawyers warn of speaking freely to health and safety inspectors

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Canadian employers and supervisors should rethink voluntarily giving statements to regulatory health and safety inspectors investigating workplace accidents given that such voluntary statements can be used against them in criminal proceedings, according to some legal experts.

In a major wake-up call for employers and supervising employees across the country, Ontario Superior Court Judge Ian MacDonnell in Toronto last month sentenced Metron Construction Ltd. project manager Vadim Kazenelson to 3½ years in prison for his conviction on four counts of criminal negligence causing death and one count of causing bodily harm. The conviction was in connection with a December 2009 incident in which a swing-stage scaffold collapsed at a Toronto high rise, killing four employees.

The conviction and lengthy jail sentence raise new considerations and concerns for employers and supervisors about how to react to workplace accident investigations, even though only extreme cases are likely subject to criminal prosecutions, Frank Portman, a Toronto-based associate with Stringer L.L.P., said during a legal webinar sponsored by the law firm on Thursday.

“It really comes down to the role of police,” he said. “In most health and safety prosecutions, the police are going to have a fairly minimal role. Most of the time they will very quickly hand over the investigation to the Ministry of Labor. Where criminal charges are concerned, however, you're likely to see much more police involvement, particularly with respect to interviewing witnesses and collecting evidence. If there is extended police presence, particularly after the initial day of the incident, this may be a major red flag that criminal charges are on the radar.”

The Ministry of Labor has statutory inspection powers in the event of a workplace accident, which essentially means inspectors can compel statements and documents from employers and individuals, said Ryan Conlin, a Toronto-based partner with Stringer. If Ministry inspectors ask for a statement, employers and supervisors should clarify if they are being asked to voluntarily give that statement, he said.

“If the Ministry of Labor says 'sure, the statement is voluntary,' then don't give a statement,” Mr. Conlin said.

But if employers and supervisors are compelled to give a statement, they should clearly emphasize that they are not freely doing so, he said.

“If it is (compelled), it's not admissible in court and can't be used against you,” Mr. Conlin said.

It is also very common for the ministry to issue health and safety orders after a workplace accident, and employers have to rethink their responses to those orders, he said.

“Many employers will just comply with those orders and not appeal them even if they think they're wrong,” Mr. Conlin said. “Of course, that can come back to haunt you in a criminal case or a health and safety case where the court will say 'well you didn't appeal the order so therefore you're deemed to have accepted that it's true.' You're halfway to being convicted of a criminal offense just by admitting you're violating a health and safety act by not taking the steps to appeal.”