THE EMPLOYERS' EDGE
Divisional Court Expands Employer Accident Reporting Obligations Under OHSA
In a recent decision that has broad implications across all sectors of industry and business, the Divisional Court has held that the Occupational Health and Safety Act (“OHSA”) requires that employers must report any critical injury or fatality that occurs in the workplace even if it is a non-worker who is injured. In Blue Mountain Resorts Limited v. Ontario, the Divisional Court modified but upheld the Ontario Labour Relations Board’s ruling that the employer, Blue Mountain Resorts Limited (“Blue Mountain”), failed in its duty to report a fatality under section 51(1) of the OHSA when it did not report the drowning death of a guest to the Ministry of Labour.
In December, 2007 a guest drowned in an unsupervised swimming pool at Blue Mountain. Upon visiting the premises in March, 2008 a Ministry of Labour inspector learned of this death and issued an Order to Blue Mountain requiring that the death be reported to the Ministry of Labour as per the requirements of Section 51(1) of the OHSA:
51. (1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.
Blue Mountain appealed the Order to the Ontario Labour Relations Board (the “Board”) and argued that because the person who drowned was not a worker, section 51(1) of the OHSA did not apply. Two issues were put before the Board in deciding Blue Mountain’s appeal: 1) does the word “person” in Section 51(1) mean “worker”; and 2) was the unsupervised swimming pool a “workplace” for the purposes of the OHSA.
The Board determined that in light of the legislative context and purposes of the OHSA as set out in the case law, the term “person” was not synonymous with the term “worker” under the OHSA. This finding was not challenged by Blue Mountain in its appeal to the Divisional Court and the Court found no error in the Board’s interpretation of “person” in section 51(1).
The Board also determined that all 750 acres of Blue Mountain’s resort was a “workplace” which was challenged by Blue Mountain before the Divisional Court. In considering the Board’s interpretation of “workplace”, Justice Low rejected Blue Mountain’s position that a “workplace” required a worker to be actually present at the site. Since there were no workers working at the swimming pool at the time of the drowning, Blue Mountain argued that it could not be a workplace within the meaning of the OHSA. Justice Low found that this interpretation ignored the fact that workers and guests are vulnerable to the same hazards whether a worker is actually present or not.
Justice Low did find that the Board’s determination that all 750 acres of Blue Mountain constituted a “workplace” to be unreasonable in the circumstances. Instead, she said that each case must be determined on its own facts. In this case, the pool area was an area where workers worked, and therefore fit the definition of “workplace”. For employers, this means that any critical injury or fatality to anyone on their premises must be examined as to whether or not it is an area in which workers may potentially work to determine if there are reporting requirements.
Notwithstanding that the Divisional Court did not uphold the Board’s expanded interpretation of a workplace, it certainly did put employers on notice that any critical injury or fatality in the workplace will now need to be reported to the Ministry of Labour. While this was always the case with workers, this obligation now applies to those same types of injuries when they occur to non-workers.
While this predominantly impacts the service and hospitality industries where premises are regularly attended by the public and/or customers, Blue Mountain will affect all employers in the province. Accordingly, the CCP team recommends that employers review their OHSA policies and training with respect to reporting and notification to ensure that employees are aware and prepared to deal with such situations.
The CCP team can assist with policy review and revision, as well as managerial and employee training surrounding these and other OHSA obligations.
Blue Mountain has sought leave to appeal to the Court of Appeal and we will keep you posted on the status of this ground-breaking decision. Note: Leave to appeal to the Ontario Court of Appeal was granted in December 2011.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.