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The Second Opinion: Ontario Court of Appeal limits reach of worker safety legislation with new test for reportable injuries

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in The Second Opinion
Kirsten Thompson

“Sometimes a swimming pool is just a swimming pool.”

With that pronouncement, the Ontario Court of Appeal righted what it described as the “absurd” result of a literal interpretation of worker safety legislation that saw a resort sanctioned for failing to report to the Ministry of Labour the death of a guest in its swimming pool.

The Occupational Health and Safety Act (“OHSA”) requires employers to report any “critical injury” or fatality to any “person” at a “workplace”.  The Ontario Labour Relations Board (“OLRB”) and a lower Court held that this obligation included those incidents in which a non-worker died or was critically injured at or near a place where a worker is working, has passed through, or may at some other time work, regardless of the cause of the incident. The Court of Appeal held that this literal interpretation was unreasonable.

The decision by the Court of Appeal in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 clarifies the circumstances in which employers are required to report a critical injury or fatality suffered by a non-worker under the OHSA.

The Facts

Blue Mountain operates a full service ski resort in Collingwood, Ontario. On December 23, 2007 a guest of Blue Mountain drowned in an unsupervised swimming pool. Believing the incident did not trigger any workplace safety reporting obligations, Blue Mountain did not report the death to the Ministry of Labour. The accident came to the attention of an Ontario Ministry of Labour Inspector in March of 2008 and the Inspector issued a compliance order directing Blue Mountain to report the drowning to the Ministry of Labour pursuant to section 51(1) of the OHSA. This section requires an employer to immediately report to the Ministry of Labour a fatality or “critical injury” which occurs to a “person” at a workplace:

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.

In addition, section 51(2) of the OHSA imposes obligations upon employers to preserve the scene of a fatality or “critical injury” until the scene has been released by an inspector. The term “critical injury” is defined by Regulation and includes, among other things, jeopardy to life, unconsciousness, limb fractures or amputations, serious burns or blood loss, or loss of sight.

The Ministry of Labour maintained that the pool was a “workplace” within the meaning of the OHSA and that the plain wording of the section required Blue Mountain to report.

OLRB

Blue Mountain appealed the Inspector’s order to the OLRB pursuant to section 61 of the OHSA. At the hearing of the Appeal before OLRB, Blue Mountain argued that the interpretation being given to s. 51(1) was overbroad. The resort called evidence that, under that interpretation, there could be as many as 24 “critical injuries” on a typical Saturday during ski season at the resort. Blue Mountain argued that the preserving the scene requirements in section 51(2) meant that on the busiest weekend of the season up to 39 runs would have to be closed or narrowed to preserve the scene. Blue Mountain called evidence that being forced to close or narrow ski runs would create more hazards as a result of barricades.

In response, the Ministry of Labour argued that the purpose of the broad reporting requirement was to ensure that the Ministry was made aware of situations that created risks to workers, the very purpose of the legislation.

The OLRB accepted the Ministry’s submission and held that the pool area was a “workplace”. Even though no evidence was called about the work performed in the pool area, the OLRB “inferred” based on “general and common knowledge” that at least one employee of Blue Mountain enters the pool area at least once each day, and therefore qualified as a “workplace”.

Divisional Court

Blue Mountain’s application for judicial review was dismissed by the Divisional Court, which  upheld the OLRB’s finding that the plain wording of the section required that a critical injury or fatality to any “person” had to be reported. The Divisional Court also agreed with the OLRB’s finding that the pool area was a “workplace” despite there being no workers present or involved in the accident.

Court of Appeal

Blue Mountain appealed further to the Ontario Court of Appeal. The Court held that while a technical reading of the OHSA offered some support for the OLRB’s interpretation, the practical result of the approach taken by the OLRB was that the reach of the legislation was extended far beyond what was necessary to protect worker safety.

The Court embraced the doctrine that states that where there are competing interpretations of a law, it ought to be interpreted in a manner which avoids absurd results. It was held by the Court that the OLRB’s approach could yield a number of absurd results, and the Court was not above invoking a threat to the country’s national past time to drive the point home:

[The Inspector] acknowledged that if there were a critical injury to a hockey player or a spectator during a Toronto Maple Leaf hockey game at the Air Canada Centre, it would have to be reported to the Ministry.  If the injury occurred on the ice, the hockey game would have to be shut down – televised or not – until the premises were released by a Ministry inspector…

[...]

One can envision endless examples that would be caught by the Board’s interpretation, all without any causal relationship with a workplace safety issue.  Would parents have to report to the Ministry if their child were injured at home because they had hired a nanny?  Does a roller coaster become a “workplace” when a guest is injured while riding on it?  Because hotel employees enter guest rooms, does a hotel room become a “workplace” when a guest dies of a heart attack or a drug overdose, or is murdered?

While the Court of Appeal rejected the “limitless scope” of the OLRB interpretation, it did not completely accept Blue Mountain’s interpretation,  which would have limited the notice and reporting requirements to only those situations where a worker is actually present at the scene of the accident. The Court chose a middle ground, interpreting an employer’s reporting obligation under the OHSA as follows:

I would interpret s. 51(1) to provide that the Ministry must be notified of a death or critical injury at a site, and the requisite report provided, where there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at a workplace. A workplace is where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work.

Implications for Employers

Employers now have the benefit of a two-part test to evaluate whether to report critical injuries and fatalities involving non-workers to the Ministry of Labour. A reportable accident will be one:

  • that has taken place at the “workplace” (broadly defined to include any area where a worker might reasonably be expected to be working in the ordinary course of their employment); and
  • where there was a realistic chance that the hazard involved could put the safety of workers at risk.

Employers will welcome this decision as it makes it clear that not all critical injuries or fatalities to non-workers are reportable.

My colleague, Christopher McHardy, has also written a post on this decision for McCarthy Tétrault’s British Columbia Employer Advisor blog which can be found here.

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.