Can my lawyer attend my Occupational Health and Safety interview? Dos and don’ts for Alberta employers navigating OHS investigations

Employers may become subject to an Occupational Health and Safety (OHS) investigation where an injury or accident occurs at their worksite. The OHS officer’s investigative authority is granted by the Occupational Health and Safety Act (Alberta) (the OHSA), which empowers them to (among other things):

• Attend the worksite and scene of the injury or accident;
• Interview any witnesses or any other person relevant to the investigation;
• Request the production of any records that may be relevant to the investigation; and
• Take any interim steps the OHS officer believes is necessary to complete the investigation or otherwise ensure the health and safety of the worksite.

The OHSA does not explicitly address whether legal counsel can be excluded from OHS investigation interviews, but adjudicators have considered this issue.

In Ebsworth v Alberta (Human Resources and Employment), 2005 ABQB 976, OHS assigned officers to conduct an investigation of a fatal accident at the employer’s worksite. One of the witnesses to the accident refused to be interviewed without the presence of his legal counsel, which was contrary to OHS’ investigation procedure. Upon being presented with this issue, the court determined that a “statutory delegate has the implied authority to determine its own procedure as necessary to carry out its function.” As a result, the court found that “[a]lthough it may be desirable and perhaps even advantageous to permit the presence of legal counsel during an interview,” OHS had the jurisdiction to choose, as part of its investigation procedure, to exclude legal counsel from attending the investigation interviews.

This finding was confirmed in Neustaedter v Alberta Relations Board, 2023 ABKB 294. Similar to the situation in Ebsworth, OHS proceeded to conduct an investigation into a fatal accident. The employer’s representative and some of the employees refused to participate in interviews about the accident without the presence of legal counsel. In response, OHS issued various administrative penalties for hindering the investigation process and failing to comply with OHS directives. These penalties were upheld on appeal first by the Alberta Labour Relations Board and then the Alberta Court of King’s Bench, both referencing the decision in Ebsworth. The court held that Ebsworth correctly decided that OHS investigators are under no legal obligation, whether under the Charter or otherwise, to permit legal counsel to be present during an interview for the purpose of obtaining a statement as authorized by the OHSA.

Takeaway

Being subject to an OHS investigation can be a challenging experience, but we have compiled some dos and don’ts that can assist you in navigating the process more smoothly, demonstrating your commitment to a safe workplace and potentially improving your workplace health and safety in the long run. 

Dos

1. Do provide access and be transparent: Allow the OHS officer access to the workplace, relevant documents and requested information. Answer questions honestly and thoroughly. Transparency can build trust and demonstrate a commitment to safety.
2. Do keep records and take notes: Maintain detailed records of safety measures, training sessions and incident reports. Document all interactions with the OHS officer, noting all requests made.
3. Do inform employees and clarify procedures: Notify employees about the investigation and what it entails. Explain the investigation process to your employees and encourage them to cooperate and provide truthful information.
4. Do conduct internal audits and implement improvements: Before and during the OHS investigation, review your safety protocols to ensure they meet regulatory standards. If any issues are identified, take immediate steps to address and rectify them.
5. Do consult legal counsel: Experienced counsel can help guide you through the investigation process and help ensure your rights are protected. Even if counsel is not permitted in the interview, they can assist in the process.

Don’ts

1. Don’t withhold information and restrict access: The employer is obligated to cooperate with the investigation and failing to do so can lead to further scrutiny and potential penalties. However, OHS is not entitled to information that is subject to legal privilege. If you are unsure whether a  document may be privileged, check with legal counsel before producing it.
2. Don’t tamper with documents or instruct employees to lie: These acts are illegal and doing so can lead to legal repercussions for both you and your employees.
3. Don’t overreact or make rush decisions: Stay calm and professional throughout the investigation and take time to consider any requests or recommendations from the OHS officer before taking action.
4. Don’t neglect immediate issues and disregard feedback: Address urgent safety concerns immediately even if they are outside the scope of the investigation and use the OHS investigation as an opportunity to improve your workplace safety culture and protocols.
5. Don’t retaliate against employees or create a hostile work environment: Ensure that no employee faces retaliation for participating in the investigation or raising safety concerns. This will lead to a more open environment where employees are comfortable raising issues before they lead to an injury or accident.

If you have any questions about employers’ legal obligations during and after an OHS investigation, please reach out to Cristina Wendel, Jenny Wang or any member of Dentons’ Employment and Labour group. 

We would also like to thank our summer student, Logan Summers, for assisting with the research for this blog post.