Update - Critical Injuries of Non-Workers at Your Workplace




On February 7, 2013 the Ontario Court of Appeal has overturned the May 18, 2011 Divisional Court decision, Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board) which had upheld the decision of the Ontario Labour Relation Board’s (the “OLRB”) finding, that employers have an obligation to report all deaths or critical injuries to non-workers which happen at the workplace.

The facts are that an Order was made by a Ministry of Labour (“MOL”) Inspector against Blue Mountain Resorts Limited related to an occurrence at Blue Mountain in which a guest of the resort drowned in an unsupervised swimming pool. The Order was made pursuant to section 51(1) of the Occupational Health and Safety Act, 1990, R.S.O. c. O.1., as amended (the “Act”), which provides as follows:

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.

The MOL Inspector concluded that a “person” included a guest and that a “workplace included an unsupervised swimming pool. Blue Mountain did not notify a MOL Inspector of the occurrence pursuant to s. 51(1) of the Act and did not send to the Director a written report of the circumstances of the occurrence.

The word “person” is not defined in the Act. The word “workplace” is defined in s. 1 of the Act as follows:

“workplace” means any land, premises, location o thing at, upon in or near which a worker works.

The Board concluded that the word “person” in s. 51(1) of the Act is to be construed in its ordinary meaning and not as synonymous with the word “worker”.

The focus of the judicial review was the meaning of the word “workplace” and the manner which it is to be construed in s. 1 and s. 51(1) of the Act. Blue Mountain argued the practical application of the reporting requirement flowing from the interpretation of the meaning of “workplace” to include all 750 acres of the entire resort.

The Divisional Court concluded that workers and guests are vulnerable to the same hazards. The purposes and intents of the legislation would be undermined if a physical hazard with potential to harm workers and non-workers alike was not subject to reporting and oversight. That said the Divisional Court was not persuaded that the whole of Blue Mountain Resort’s 750 acres is a workplace. Each case must be determined on its own facts.

The Divisional Court went on to conclude that in the case of a guest drowning in the resort unsupervised swimming pool that it is common ground that the swimming pool is a place where one or more workers work. As such, the absence of a worker at the swimming pool premises at the time of the occurrence does not diminish the fact that it is a workplace and therefore the conclusion of the OLRB was not unreasonable.

The Ontario Court of Appeal held that the interpretation given to s. 51(1) of the Act by the Board and the Divisional Court was unreasonable.  Therefore it cannot stand.  The Court of Appeal interpreted s. 51(1) of the Act 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. 

The Court of Appeal went on to hold that although a literal reading of s. 51(1) would suggest a broader interpretation, the interpretation adopted by the Court of Appeal conforms to the purpose and objective of the Act and is consistent with the provisions of the Act read as a whole, even if the words of s. 51(1) alone may suggest the alternative interpretation.

What this decision means going forward for employers is that when a critical injury or death of a worker or non-worker occurs at a workplace the Ministry of Labour must be notified however, the employer is only required to complete the requisite report if it is determined that:

  1. the critical injury or death occurred either where (i) a worker was carrying out his or her employment duties at the time the incident occurred, or, (ii) where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work; and
  2. 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;

If you would like to discuss anything in regard to employer’s obligations pursuant to the Act, please contact us.