Employers may now need to report all serious accidents that take
place on their premises – even if no worker is
involved or harmed.
Workplace health and safety laws have long been in force in all
Canadian provinces to protect workers from hazardous situations and
environments. These laws require employers to take measures to
protect their employees from injury and to report injuries or
deaths. Until recently, it was commonly understood that
employers were not required to report incidents in which no worker
In a recent decision involving the Blue Mountain ski resort, a
panel of the Ontario Divisional Court agreed with the Ontario Labour Relations Board (OLRB) that an
employer can be sanctioned for failing to report an accident even
when the incident involved only members of the public. Blue
Mountain had been cited for failing to report the drowning of a
guest of its resort in an unattended pool. In a strict reading of
the Ontario Occupational Health and Safety Act, the
OLRB determined that the Act applied to the death of any
person not just workers. Despite the context of the Act,
the word person could include customers, guests and other
members of the public. The injury could fall within the scope of
the Act so long as it occurred in a workplace.
Blue Mountain tried to have the OLRB's decision overruled by
the Divisional Court, arguing that the OLRB's interpretation
would create an excessive burden on employers and go beyond the
purpose of the legislation: protecting employees at work. Part of
the difficulty for Blue Mountain was the finding of the OLRB that
the entirety of its 750 acre property constituted a
'workplace', which would encompass the activities of all
customers of the ski hill and the many fractures and breaks that
commonly result from that activity.
In Ontario, the Occupational Health and Safety Act
requires an employer to report critical injuries and
deaths that occur in the workplace. A workplace is "any land,
premises, location or thing at, upon, in or near which a worker
works". Other provinces define workplace or work site as some
variation of "any place where a worker is or is likely to be
engaged in an occupation". In Blue Mountain, the
Divisional Court agreed with the OLRB that the pool was a workplace
within the statute, but left open for future cases the question of
whether an employer's entire property or other large area open
to the public will be considered a workplace.
Not all occupational health and safety legislation in Canada
imposes the same responsibilities on employers. Some provinces,
such as Alberta and Nova Scotia, have statutes that, like
Ontario's, are worded broadly enough to impose duties on
employers when non-workers suffer injury. Others, such as PEI,
limit an employer's responsibilities in the face of an accident
to those instances where a worker is affected.
The Future in Canada
Looking forward, given the recent judicial trend to extend
rights in labour and related legislation, this broad and liberal
interpretation of occupational health and safety legislation may
continue. If so, employers would be wise to review their
health and safety procedures, and to take steps now to comply with
the expanding scope of such legislation, in Ontario and other
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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