Under British Columbia’s Workers Compensation Act (“Act”) an employer must immediately notify WorkSafeBC of a workplace accident that (among other things):
- results in serious injury or death to a worker
- involves a major structural failure or collapse
- involves the major release of a hazardous substance
When such accidents occur, the scene of the accident must not be disturbed until an investigation has taken place.
At first glance the “reporting requirement” is clear. But in practice it can give rise to uncertainty. For example, if the worksite is not owned by the employer, must the owner report? And who is responsible for reporting incidents when there are multiple employers on a single worksite?
In British Columbia Hydro and Power Authority v. Workers’ Compensation WorkSafeBC of British Columbia, 2014 BCCA 353, the British Columbia Court of Appeal (the “Court of Appeal”) confirmed that the duty to report a workplace accident in British Columbia does not apply to a workplace “owner” unless the owner is also an “employer” in that particular workplace. The Court of Appeal’s decision also confirms that multiple employers may be required to report a single incident in some circumstances, such as when multiple employers are operating on a single site.
On November 26, 2009, a worker employed by Arrow Installations Limited (“Arrow”) suffered severe electrical burns when he came in contact with a power line owned by the British Columbia Hydro and Power Authority (“BC Hydro”). BC Hydro responded to an emergency call from the injured employee’s co-worker and assisted with the rescue, but did not report the accident to WorkSafeBC. Arrow eventually reported the incident, but it took Arrow more than five hours to do so.
WorkSafeBC issued an order stating that BC Hydro had violated the Act by failing to report the incident. BC Hydro argued that it did not have a duty to report the accident because it was not the worker’s employer. WorkSafeBC reviewed and confirmed its original decision, taking the position that BC Hydro had an obligation to report – despite the fact that its employees were not at the worksite – because it had a “significant connection” to the worksite.
WorkSafeBC’s decision was judicially reviewed by the B.C. Supreme Court (“Supreme Court”), and ultimately overturned. WorkSafeBC appealed.
On September 15, 2014, the Court of Appeal dismissed WorkSafeBC’s appeal. The Court of Appeal found that the B.C. legislature has clearly distinguished between “owners” and “employers”, and that WorkSafeBC’s interpretation of the Act conflated that clear distinction. For example, WorkSafeBC’s interpretation would require “non-employer worksite owners” to not only report but also investigate accidents, as well as take corrective measures with employees whom they do not have authority over. In short, the Court of Appeal found that WorkSafeBC’s interpretation was unreasonable because it did not fit with the overall scheme of the Act, and confirmed that the Act does not require mere owners to report serious workplace accidents.
Interestingly, however, the Court of Appeal agreed with WorkSafeBC insofar as the Act may require multiple employers to simultaneously report a single incident under some circumstances. This may occur, for example, in a “multiple-employer workplace” where workers of two or more employers are working at the same time.
Companies that merely own property at a worksite and who do not employ workers at that site are not required to report an accident at that site under the Act. Employers, on the other hand, must ensure that they have proper procedures in place to receive timely information about serious workplace accidents, and they must report those accidents immediately.
Employers at multiple-employer workplaces should assume that the reporting requirement is shared. Employers should report workplace accidents at their worksites – both accidents involving their own employees and other employer’s employees – if the accident results in serious injury to or the death of a worker.
Many thanks to Jennifer Bernardo for her assistance in drafting this blog.