Sometimes a swimming pool is just a swimming pool: Blue Mountain wins appeal

Feb 19, 2013

By Julie-Anne Cardinal, Jeremy Warning and Cheryl A. Edwards

Law books and gavelOn February 7, 2013, the Court of Appeal for Ontario handed down its highly anticipated decision in Blue Mountain Resorts Limited v. Ontario (Ministry of Labour and Ontario Labour Relations Board), 2013 ONCA 75. It found that Ontario’s Occupational Health and Safety Act does not require employers to report every fatal or critical injury to any person at a workplace. Rather, the act requires employers to report only critical injuries or deaths that occur at a workplace and that have a reasonable nexus to a realistic risk to worker safety. Read on to learn more about the case, as well as suggested best practices for employers and constructors.

Facts

On Christmas Eve 2007, a guest of the resort drowned in an unsupervised swimming pool. No workers were present at the time. Blue Mountain did not report the fatality to the Ministry of Labour. It reasoned that the incident did not involve a worker and had not occurred in a “workplace” per se, given that no employees of the resort were present. The following March, a Ministry of Labour inspector conducting a routine visit to the resort learned of the drowning and issued an order, citing the resort for failing to report the fatality under the act. In making the order, the inspector determined that subsection 51(1) required an employer to report critical injuries to both persons who were not workers, as well as workers. Section 51(1) of the act states:

Where a person is killed or critically injured from any cause at a workplace, 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.


OLRB and previous court rulings

The resort appealed the order to the Ontario Labour Relations Board. The board upheld the order, concurring with the Ministry of Labour’s submission that the act requires reporting of all critical injuries and fatalities to any “person” in a “workplace.”

Importantly, the resort had argued before the board that if reporting of critical injuries or fatalities to all persons was required, it would also be required to preserve the accident scene which would create tremendous disruption to the resort. The board declined to comment on that argument because, in its view, the order cited the resort only for failing to report the fatality.

Blue Mountain had the board’s decision judicially reviewed. On review, Ontario’s Divisional Court found the board’s decision to be reasonable. Both the board and Divisional Court concluded that, because the act refers to both “workers” and “persons” in various provisions, the legislature must not have intended them to be synonymous. The Divisional Court also reasoned that hazards resulting in injuries to non-workers or “persons” could also affect workers, meaning it was within the powers of the Ministry of Labour to investigate to determine if there was a risk to the health and safety of workers.

Appeal court rules: reporting must have nexus to worker safety

Five parties participated in the hearing before the Court of Appeal for Ontario: Blue Mountain Resort, the Ministry of Labour, the Ontario Labour Relations Board, and intervenors Conservation Ontario and the Tourism Industry Association of Ontario (“Tourism Ontario”). The resort, Conservation Ontario and Tourism Ontario all asserted that the board’s interpretation of the statute had significant practical implications for employers (with just about every “place” in Ontario being a “workplace” for purposes of the act). The ministry argued that, in keeping with the strict and clear wording of the act, all fatal or critical injuries in Ontario workplaces ought to be reported, and that it was the ministry’s role as regulator to determine which incidents ought to be investigated. The Court of Appeal rejected the ministry’s position.

The Court of Appeal succinctly set out its findings, writing:

The interpretations [the Divisional Court and board] gave to s. 51(1) of the [act] would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a “workplace” because a worker may, at some time, be at that place. This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. Such an interpretation goes well beyond the proper reach of the [act] and the reviewing role of the Ministry reasonably necessary to advance the admittedly important objective of protecting the health and safety of workers in the workplace. It is therefore unreasonable and cannot stand.

The Court of Appeal ruled that “a proper interpretation of the Act requires that there be some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site.”

Through this decision, the Court of Appeal limited an employer’s reporting and notification obligations to situations where:

  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”)
  3. 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 (“from any cause”). [emphasis added]

Best practices for employers and constructors

It is unclear whether the Ministry of Labour will seek leave to appeal the decision to the Supreme Court of Canada, or if there is any intention to amend section 51 of the act. For now, consider the Court of Appeal decision to be the governing law relating to notification and reporting of injuries occurring in Ontario workplaces. As such, it is advisable to review and, if necessary, revise your reporting policies and train workers and supervisors on how to respond. In these reporting policies, strategies and procedures, include the following:

  • a clear statement of the incident reporting requirements specific to the individual workplace: who from the workplace should be called; when should they be called; and backup contacts in case of after-hours emergencies. Usually these contacts should be notified before any regulatory OHS body such as the Ministry of Labour.
  • statements specifying that critical injuries and fatalities involving all persons are potentially reportable and that, where the injury is reportable, accident scenes must be preserved. Employers and constructors may consider directing workers and supervisors to consult with appropriate human resources, health and safety or management personnel before notifying the ministry.
  • directions to contact legal counsel before notifying the ministry when there is doubt whether the notification provisions of the act have been engaged.
  • standard letters and reporting forms, available on site, for use in the event of a critical injury or fatality to ensure that the minimum statutory notification and written reporting requirements are followed.

Employers operating in multiple Canadian jurisdictions

As a cautionary note, bear in mind that different standards apply in different provinces. In Alberta and Nova Scotia, for example, all deaths that occur at a workplace must be reported, including those involving members of the public. However, insofar as critical injuries are concerned, only those incurred by workers are reportable in those provinces. Conversely, both Quebec and British Columbia require only that employers report injuries to workers. Thus, no one standard applies across the country. Further, jurisdictions such as Nova Scotia and Newfoundland and Labrador have reporting obligations that are similarly worded to the obligation in Ontario. As such, the Ontario Court of Appeal decision, although it does not interpret the legislation nor is it binding in either of those jurisdictions, could prove influential. Therefore, employers operating in multiple jurisdictions should consult the applicable statute to determine the specific circumstances in which workplace injuries and events, such as fires, explosions and collapses, are reportable. This variation and complexity make it important for employers and constructors to ensure that workers and front-line supervisors are given information and instruction on the legislated requirements relating to workplace accidents in order to ensure compliance with the applicable statutory regime.

Julie-Anne Cardinal is an associate in Heenan Blaikie’s Labour and Employment Group: 416-643-6939; jcardinal@heenan.ca. Jeremy Warning is a partner in the group and a member of the firm’s national OHS & Workers’ Compensation Practice Group: 416-643-6946; jwarning@heenan.ca. Cheryl A. Edwards, Partner, leads the firm’s OHS & Workers’ Compensation Practice Group: 416-360-2897; cedwards@heenan.ca.