Avoid having a fall on the ice charged to your CNESST file
With the winter season well underway in Quebec, accidents involving falls on ice will undoubtedly increase in the coming weeks. Even if the presence of snow or ice is not unusual in Quebec’s climate, it is possible that an accident may occur because of a lack of maintenance by your subcontractor. It is possible, in certain specific cases, to have the costs of a work-related accident removed from your employer’s file.
Case law has been clear for several years: when an accident occurs due to the majority fault of a third party, when this accident is not part of the risks that the employer must bear in relation to its activities, or when it involves a trap or a rare, unusual, or exceptional situation, all the costs are removed from the employer’s file.
What are the employer's obligations following snow or icefall?
It is not enough to say that it is the responsibility of the third party to carry out the maintenance, it is also the employer’s responsibility to be diligent in making the premises safe. To avoid accidents caused by entrapment-like circumstances, the employer should ensure that workers are given minimal notice of the potential fall hazard. For example, the employer could send a message to employees or place signs or cones in hazardous areas. He could also apply abrasives himself if he notices that the snowplow has not passed.
As soon as the employer is aware of the weather conditions, it is as much the employer’s responsibility to act quickly as the contractors. In some cases, if the employer demonstrates that it has attempted to contact the snow remover to inform it that there is a maintenance problem, most of the responsibility will lie with the latter.
According to recent decisions in this area, maintenance must be done as soon as possible, i.e., a few hours after new precipitation. The stability of the weather must be considered, analyzing changes, such as snow turning into freezing rain.
The Winning Conditions for Obtaining a Charge Transfer
Court decisions accepting charge transfers are rare because the evidence presented by the employer must be convincing. A prompt investigation remains one of the winning conditions to increase the chances of success. The investigation report should contain:
- Testimonies of the worker and witnesses to the accident
- The contract of the subcontractor responsible for snow removal
- Weather conditions at the time of the accident
- Elements of the employer’s diligence (contact or complaint to the subcontractor, spreading of abrasive, warning of employees, etc.)
Whether you share the blame, remember that a good investigation is always necessary to prevent an unfortunate accident from happening again.
We are here to help you fulfill your obligations and investigate when these situations arise. Do not hesitate to call on our team!
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