Any employer experiencing a workplace fatality faces a multitude of legal issues. One aspect of managing in the aftermath of a tragic fatality that receives little attention is the inquisitional proceeding into a death — either an inquest or inquiry — that may arise following any OHS charges or penalties. In each Canadian province or territory there is legislation that either provides for an inquest or inquiry. The main difference is that an inquest is generally presided over by a coroner (who is a physician but may not be a pathologist) and generally uses a five-person jury to determine the facts and recommendations; whereas a fatality inquiry is presided over by a judge. The ultimate goal of both is to investigate certain types of deaths (as determined by the particular legislation), to determine the identity of the deceased and to determine the cause and manner of death.
However, an inquiry or inquest will not be held into all deaths that occur in a workplace. Some jurisdictions have established an inquest or inquiry will be mandatory for deaths occurring in certain workplaces, but no jurisdiction requires one for all workplace deaths. For example, Ontario requires an inquest for all deaths occurring on a construction project or in a mine, while New Brunswick requires an inquest at those workplaces but also at a sawmill, lumber, food or fish processing plant. If an inquest or inquiry is not mandatory, then the decision to hold one rests with the coroner or medical examiner.
There is no mechanism for settlement in an inquest or inquiry because its purpose is to examine the circumstances of a death, not to adjudicate between competing interests of the parties. As such, each inquest or inquiry will proceed to a hearing. The principal function of the hearing is to answer five questions:
• Who was the deceased?
• How did the deceased die?
• When did the deceased die?
• Where did the deceased die?
• By what means did the deceased die?
In answering those questions, there can be no determination of legal responsibility or any conclusions of law (such as determining that health and safety legislation has been breached).
Beyond answering those questions, the inquest or inquiry may consider recommendations to prevent similar deaths. Recommendations may be directed to any party regardless of whether that party participated in the inquest or inquiry. Recommendations from an inquest or inquiry are not legally binding on those to whom they are directed, 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 is appointed to assist each (counsel is usually a Crown attorney) and counsel 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; call, question and cross-examine witnesses; and make arguments and submissions).
The ease in which standing is obtained will depend on the jurisdiction. For example, in British Columbia, 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 standing 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 during the hearing, hospitals, doctors, emergency medical services, government ministries or agencies may be among those to seek 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.
From an employer’s perspective, there are several key reasons why it may choose to participate in an inquest or inquiry. The first is managing any reputational risk. If the incident that caused the fatality had media profile at the time it happened, it is probable the inquest will also receive media attention. As such, there can be risk to the employer’s reputation that may be best managed by participating in the process.
A second reason to participate is to be able to address the need for and scope of recommendations that may be issued. Although such recommendations 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 be an indication of negligence that advances a future civil claim against the employer. Participation in the inquest or inquiry would permit the employer to have input into any potential recommendations. It would allow the employer the best opportunity to ensure any recommendations that are made are reasonable and not disproportionately onerous.
Employers involved in an inquest or inquiry should consider the following best practices.
Provide positive information: Following a workplace fatality, the employer’s investigation may have identified a series of post-incident steps to be taken to prevent a similar incident from occurring. The investigation will also likely have confirmed the extent of pre-incident measures relating to the incident. This information should be offered to the coroner.
Attend the meeting: In most jurisdictions, a meeting will be held prior to the inquest or inquiry. This meeting is, typically, conducted by counsel for the coroner or inquiry and all those who may wish to seek standing are invited to attend. The meeting discusses the inquest (anticipated witnesses, parties who may seek standing, the order of questioning) and its issues and processes, and the confidential brief is made available to those who attend. The brief will contain all witness statements, relevant documents, photographs and medical reports. Receiving this will allow the employer to understand the evidence that is anticipated to be called by counsel to the coroner or inquiry.
In addition, there may be a discussion regarding theories of the inquest. This discussion should reveal, at least, the initial approach of counsel to the coroner or inquiry and any other parties who are likely to seek standing. Having such information is crucial to identifying whether any party has a particular agenda and if that agenda is likely to seek recommendations relating to company or industry processes or procedures.
Assess risks: In deciding whether to participate, the employer should be assessing the risks associated with the inquest or inquiry. In the case of a mandatory inquest or inquiry, 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 may 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 the subject of media attention. Further, 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 participation in the inquest or inquiry.
This article was co-authored by Jeremy Warning, also a former OHS prosecutors who is now a partner at Mathews Dinsdale & Clark LLP in Toronto. He can be reached at (416) 777-8284 or [email protected].
This article originally appeared in the November 2014 issue of Canadian Occupational Safety.