Ontario Court of Appeal Clarifies Employers’ Duty to Report Fatalities and Critical Injuries at a Workplace

February 8, 2013

In
June, 2011 we reported on the decision of the Divisional Court in Blue Mountain Resort v. Ontario in which
the Court found that the drowning death of a guest of the resort was a fatality
that should have been reported to the Ministry of Labour pursuant to subsection
51(1) of the Occupational Health and
Safety Act
.  On appeal on February 7,
the Court of Appeal reversed this decision on the basis that the lower court’s
interpretation of subsection 51(1) was unreasonable.

This
decision is one that should be welcomed employers who, as part of their
operations, are frequented in their workplaces by members of the public who are
not their employees.

In Blue Mountain, the guest
died in the unsupervised resort swimming pool. Initially, the resort thought
the cause of death was a heart attack, but it was subsequently determined that
the guest had drowned.  The resort believed
that because the deceased was a guest and not a worker, there was no need for
it to report the fatality to the Ministry of Labour for purposes of subsection 51(1)
of the Occupational Health and Safety Act:

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.

The inspector who attended at the resort some months later concluded
that “person” included a guest and that the pool was a “workplace” and issued
an order to the Resort requiring compliance with the reporting requirement.  The resort exercised its statutory right to
appeal the order to the Ontario Labour Relations Board, and the Ontario Labour
Relations Board upheld the order.  The resort
sought judicial review of that decision before the Divisional Court.  In its decision released on May 18, 2011, the Divisional
Court upheld the Ontario Labour Relations Board’s decision.

The Divisional Court found the Board’s interpretation of “person” to
include non-workers was reasonable and consistent with the purpose of the
legislation to promote workplace safety and minimize the risk of injuries:

Conditions and
hazards that result in the death or critical injury of a non-worker have the
potential to cause similar harm to workers.  The reporting obligation serves to enhance the
protection of workers by bringing hazards to the attention of the Ministry
whereas an absence of a reporting obligation would lead to a diminished
oversight and potentially less worker safety.

The Divisional Court disagreed with the resort’s argument that a
“workplace” requires the physical presence of a worker at a place where a
worker works at the time at which an occurrence with a guest or other person
takes place.  In the Court’s opinion, it
was sufficient that the place is one where one or more workers work.  The
resort had conceded that the pool is a place where one or more workers work.  As the Divisional Court noted, the “absence of
a worker at the swimming pool premises at the time of the occurrence [did] not
diminish the fact that it is a workplace.”

The
Court of Appeal disagreed with this reasoning.  Although the literal wording of subsection 51(1)
would suggest the broad interpretation adopted by the Divisional Court, it
nevertheless would lead to a wide range of outcomes outside of the intended
purpose of the legislation – to protect the health and safety of workers – and
therefore absurd.  This was particularly
true of a resort like Blue Mountain, which on any given day might see a number
of injuries to guest skiers that could be classified as critical injuries.  Not only would these injuries have to be
reported, but under subsection 51(2) the injury sites would have to be
preserved until inspected and released by the responding inspector.  The same would be true in circumstances where
a customer suffers a fatal heart attack in a store or a worshipper falls
unconscious during a Sunday church service – all situations which might fit the
literal wording of subsection 51(1) but which have no connection with the
purpose of the legislation.

Instead,
the Court of Appeal favoured a more restrictive interpretation of subsection 51(1)
anchored to the purpose of the Occupational
Health and Safety Act
, requiring reports to the Ministry of Labour when:

  1. a worker or
    non-worker (“any person”) is killed or critically injured;
  2. 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 (“workplace”); and
  3. there is some
    reasonable nexus or connection between the hazard giving rise to the death or
    critical injury and a realistic risk to worker safety at that workplace (“from
    any cause”).

This
principled interpretation should be welcomed by employers.  Paragraph (c), in particular, offers the
clarification required to prevent overreach by the Ministry of Labour in its
administration of the Occupational Health
and Safety Act
.  In the facts of Blue Mountain, had the guest been
electrocuted on entry into the pool because of a faulty light, most would agree
that subsection 51(1) was engaged, precisely because of the risk the pool posed
to the safety of those workers responsible for its maintenance.

A
full copy of the Court of Appeal decision is available here: http://www.ontariocourts.ca/decisions/2013/2013ONCA0075.htm

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