Does a broken foot constitute a “critical injury” under the Occupational Health and Safety Act? Because the Ministry of Labour inspector had not yet considered that issue, a union was prohibited from raising the issue on appeal.

An employee was struck by a forklift and sustained multiple broken toes and ribs as well as a crushed toe and broken foot.

The employer and union disputed whether the injury was a “critical injury” under the OHSA. The employer and union called in a Ministry of Labour inspector to decide the issue. He decided that it was not a critical injury. However, he said that he had been told about only the toe injury and broken ribs, and not the multiple broken toes or broken foot.

The union appealed the inspector’s decision. The union attempted to argue that the broken foot was a critical injury.

The OLRB decided, based on previous decisions, that “an appeal from an Inspector’s Orders is restricted to the issues considered by the Inspector”. Because the inspector was aware of the injured toes but not the broken foot, the OLRB could decide only whether the toe injury constituted a critical injury. The OLRB could not decide the issue of whether the broken foot was a critical injury.

If the case proceeds to a hearing, we will obtain guidance as to whether a broken foot constitutes a critical injury under the OHSA, which would require the employer to report the injury to the MOL.

CAW Local 707 v. Ford Motor Company of Canada, 2013 CanLII22067 (OLRB) (April 19, 2013)…