THE EMPLOYERS' EDGE
"Sometimes a Swimming Pool is Just a Swimming Pool" - Court of Appeal Overturns Blue Mountain Decision
In December 2007 a guest at the Blue Mountain Resort died while swimming in the unattended indoor pool. Blue Mountain did not file a notice under section 51(1), the notice of a death or critical injury section of the Occupational Health and Safety Act (“OHSA”). When the Ministry of Labour inspector learned of the drowning, he issued an Order requiring the company to file the Notice. Blue Mountain appealed that decision to the Ontario Labour Relations Board, (the “Board”). The Board upheld the Order, and on Judicial Review to the Divisional Court, the Board’s decision was affirmed (see our June 30, 2011 blog on the Divisional Court decision). The Ontario Court of Appeal has, on February 7th, overturned those decisions.
In allowing the appeal and setting aside the decisions of the Divisional Court and the Board, the Court of Appeal held that the decision would lead to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. The Court held that there was no reasonable connection between what actually happened and a risk to worker safety at the site. Further, the court held that the approach of interpreting public welfare statutes liberally and in a manner that will give effect to its broad purpose and objective does not call for a limitless interpretation of the legislation beyond what was intended by the legislature and has the potential to give the Ministry of Labour and its inspectors significantly intrusive powers for beyond what is reasonably required. The interpretation is therefore unreasonable.
So how does an employer now interpret section 51(1) of the OHSA in light of the fact that many workplaces have both workers and non-workers alike? The court has stated that section 51(1) is not engaged unless there is some reasonable nexus between the hazard giving rise to the injury and a realistic risk to worker safety. However they have said that the section intends the requirement to extend beyond workers themselves and to encompass workers and non-workers alike. The court went on to interpret s.51(1) as follows.
Section 51(1) of the OHSA will be engaged where:
A worker or non-worker is killed or critically injured;
The death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work; AND
There is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace.
We will keep our readers posted on whether the Crown will seek leave to appeal to the Supreme Court of Canada.
The CCP team can assist employers in all areas touching on their obligations under the OHSA, including compliance, appealing orders to the Labour Board, investigations into critical injuries and defending charges under the OHSA.
Click here to review the Court of Appeal’s decision.
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