By Cheryl A. Edwards and Jeremy Warning
Any employer experiencing a workplace fatality faces a multitude of legal issues. One aspect of managing in the aftermath receives little attention — an inquest or inquiry. One or the other may arise following any occupational health and safety charges or penalty. An inquest or inquiry could:
- Plunge the company into a proceeding in which its actions could be publicly criticized and scrutinized by its workers, family members of the lost worker, any union and the media.
- Be the last proceeding in a series of emotionally draining, costly, time-consuming and difficult processes following a workplace fatality. Inquests or inquiries may involve broad issues and draw in new parties who come with agendas that may be detrimental to the company’s interests.
Ultimately, inquests or inquiries can be an emotional and issue dynamic unlike any other proceeding in which a company has been involved. Understanding how they happen, what they are about and strategies for persevering through them, should help minimize the impact of an inquest or inquiry.
How they happen
Each jurisdiction in Canada provides for some form of inquisitorial proceeding to investigate certain deaths: an inquest or a fatality inquiry. However, an inquiry or inquest will not be held into all deaths that occur in a workplace. In some jurisdictions, an inquest or inquiry is mandatory for deaths occurring in certain workplaces but no jurisdiction requires one for all workplace deaths. If an inquest or inquiry is not mandatory, the decision to hold one rests with the coroner or medical examiner.
There has been some controversy around mandatory inquests. A recent decision by the Ontario Human Rights Tribunal found the provision of Ontario’s Coroner’s Act requiring mandatory inquests only for fatalities occurring in the construction or mining sectors was not discriminatory (Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 (CanLII). A complaint alleged that seasonal agricultural workers were denied the benefits of a mandatory inquest and that this was discriminatory on the grounds of race, ancestry, place of origin, colour, ethnic origin and citizenship. The tribunal dismissed the application, finding that the exclusion of seasonal agricultural workers from the mandatory inquest provision did not result in substantive inequality. It reasoned, in part, that the purpose of mandatory inquests in the construction and mining sectors was attributable to the greater risk of traumatic workplace fatalities faced by workers in those sectors.
What happens at an inquest or inquiry
The purpose is to examine the circumstances of a death, not to adjudicate between competing interests of the parties. Each inquest or inquiry will proceed to a hearing, which answers five questions:
- Who was the deceased?
- How did he or she die?
- When did the deceased die?
- Where did the person die?
- By what means did the person die?
In answering these questions, there can be no determination of legal responsibility or any conclusions of law, e.g., that health and safety legislation has been breached.
The inquest or inquiry may consider recommendations for preventing similar deaths. Recommendations may be directed to any party regardless of whether that party participated in the inquest or inquiry. Any recommendations are not legally binding. But they do become part of the public record and can have both reputational and future legal risks.
An inquest or inquiry is presided over by a coroner or a judge respectively. Counsel (usually a Crown attorney) is appointed to assist each and may be responsible for calling most, if not all, of the evidence. In addition to counsel to the coroner or inquiry, there may be other parties who are granted “standing.” (Standing permits a party to be represented by counsel, cross-examine witnesses, call and question witnesses, make arguments and submissions, and participate in any recommendations.) The ease with which standing is obtained depends on the jurisdiction.
In British Columbia, for example, the employer involved in a workplace fatality and the trade union representing the deceased worker are automatically given standing. In jurisdictions where standing is not automatic, any interested party may obtain it by demonstrating a direct and substantial interest in the proceeding. Frequently, in addition to the employer and union, the family of the deceased, and the health and safety regulator, seek standing.
Depending on the issues to be explored, hospitals, doctors, emergency medical services, government ministries or agencies may be among those seeking standing. There may also be parties who seek standing on the basis of having a unique perspective, or specialized or expert knowledge regarding the subject of the inquest.
Why employers might participate
Some employers choose not to actively participate in an inquest or inquiry. Although the employer’s workers or management may be called to testify, the employer need not participate directly. But there are several key reasons why an employer may choose to.
First, is managing any reputational risk that may be associated with the inquest. If the incident that caused the fatality had media profile when it happened, the inquest probably will also receive media attention. Issues to be explored during the inquest or inquiry may also get media coverage. So there can be risk to the employer’s reputation that may be best managed by participating in the inquest or inquiry process.
A second main reason is being able to address the need for and scope of recommendations that may be issued to the employer. Although they are not legally binding, a failure to carry them out could, in a future proceeding arising from similar circumstances, be detrimental to a due diligence defence — as an indication that all reasonable care was not exercised — or could indicate negligence that advances a future civil claim against the employer. Participating permits employers to have input into any potential recommendations. It gives them the best opportunity to ensure any recommendations made are reasonable and not disproportionately onerous. Best practices for employers follow.
Provide positive information to the coroner or medical examiner
Following a workplace fatality, the employer’s investigation may have identified a series of post-incident steps for preventing another similar incident from occurring. The investigation will also likely have confirmed the extent of pre-incident measures relating to the incident. Offering to provide the coroner with a detailed brief of both pre-incident and post-incident measures and procedures can accomplish two objectives.
First, if an inquest or inquiry is not mandatory, providing the information can assure the coroner or medical examiner, or the Fatality Review Board, that sufficient post-incident steps have been taken, and that an inquest or inquiry would not serve a meaningful purpose.
The second reason is for ensuring that the record of post-incident steps becomes part of the brief distributed to all parties. This increases the likelihood that the inquest or inquiry will highlight the positive remedial steps taken and that any recommendations will recognize, or even reaffirm or adopt, the post-incident steps taken by the employer.
Attend the pre-inquest or pre-inquiry meeting
In most jurisdictions, a meeting will be held before the inquest or inquiry. All those who may wish to seek standing are invited to attend. The meeting discusses the inquest (anticipated witnesses, parties who may seek standing, order of questioning, etc.), and its issues and processes; and the confidential brief is made available to those who attend. The brief contains all witness statements, relevant documents, photographs and medical reports. Receiving it enables the employer to understand the evidence anticipated to be called by counsel to the coroner or inquiry.
There also may be a discussion regarding inquest theories. It should reveal, at least, counsel’s initial approach and any other parties likely to seek standing. Having this information is crucial for identifying whether any party has a particular agenda. It’s vital for knowing whether that agenda is likely to seek recommendations relating to company or industry processes or procedures that would:
- have a significant unacceptable impact or make no logical sense and are not tolerable
- lead to significant legislative change that will be challenging to comply with if adopted
Assess risks associated with the inquest
This is mainly the outcome of the prior two factors. In deciding whether to participate, an employer should assess the risks associated with the inquest or inquiry, and may wish to seek the input of experienced counsel. In some circumstances, such as those in which an inquest or inquiry is mandatory, the approach to the proceeding may be solely to address the core questions about the identity of the deceased and the circumstances of the death. There may be no further theory or plan to seek or suggest recommendations. In such circumstances, the employer may determine the risks associated with the inquest or inquiry are low, and opt not to participate.
Other circumstances may suggest more significant risk. For instance, there may be an agenda to criticize the employer (without suggesting legal liability or fault), and such criticism may attract or become a subject of media attention and commentary. Further, as noted earlier, there may be an agenda to promote recommendations that would result in costly changes to workplace or industry practices, or which would make no sense or contribution to increased safety. In these circumstances, the employer may determine these risks are best managed by participating in the inquest or inquiry.
Most employers may never be involved with inquests or inquiries. However, they can and do present risks to employers that should not be underestimated — but the risks can be managed. Understanding the process and strategies that may be employed should best position a company for managing the challenge of an inquest or inquiry.
Cheryl Edwards and Jeremy Warning practice occupational health and safety law with the Toronto office of Mathews, Dinsdale & Clark LLP.