Section 51 of Ontario’s OHSA requires employers to immediately report critical injuries. Failures to report are treated seriously by the courts, levying substantial fines on offenders.

Regulation 851 defines “critical injury”, but, respectfully, in some aspects, unclearly. The definition includes a fractured arm or leg, but not a fractured finger or toe. It also includes an amputation of a leg, arm, hand or foot, but not a toe or finger. What if a hand is fractured? Or more than two fingers are amputated as opposed to one? Are these injuries reportable?

Recently, the Ministry of Labour attempted to clarify the definition on its website. Referring to s.1(d) of the Regulation, the clarification states that the Ministry takes the position that the fracture a wrist, hand, ankle or foot or more than one finger or more than one toe does constitute a critical injury if it is an injury of a serious nature. Referring to s.1(e), the clarification also states that Ministry takes the position that the amputation of more than one finger or more than one toe does constitute a critical injury if it is an injury of a serious nature.

The clarification is Ministry policy, not an amendment to the legislation, and therefore does not have the force of law. Moreover, the phrase “of a serious nature” is not defined. Despite these issues, employers should consider playing it safe by reporting injuries that fall within the clarification. To do otherwise risks an unwanted prosecution for failing to report.