In a somewhat surprising decision, the Ontario Divisional Court
recently held that employers are obligated to report a
non-worker's critical injury or fatality to the Ministry of
Labour, so long as it occurred in the "workplace". This
obligation exists regardless of whether a worker was present at the
time of the critical injury or fatality.
On December 24, 2007 a guest at Blue Mountain Resort's (Blue
Mountain) unsupervised swimming pool drowned. Blue Mountain did not
report the fatality to the Ministry of Labour, as it did not
believe that under the Occupational Health and Safety
Act(the OHSA) it was required to
report an incident that did not involve a worker.
Ministry of Labour Order
On March 27, 2008 a Ministry of Labour Health and Safety
Inspector conducted a field visit to Blue Mountain, and ordered
Blue Mountain to report the fatality, as it was captured under
section 51(1) of the OHSA. Section 51(1) states that an employer
must report the death or critical injury of a person that occurs
from any cause at a workplace.
Ontario Labour Relations Board Decision
Blue Mountain appealed the Order to the Ontario Labour Relations
Board (the Board). The issues before the Board were whether: (i)
the word "person" in section 51(1) means
"worker"; and (ii) the unsupervised swimming pool in
which the guest drowned was a "workplace" within the
meaning of the OHSA.
"Person" is not defined in the OHSA, and in order to
determine whether it is synonymous with the definition of
"worker", the Board considered the legislative context
and the purpose of the OHSA. The Board concluded that the word
"person" is to be construed in its ordinary meaning and
is not synonymous with the word "worker".
With respect to whether the guest drowned in an area that could
be defined as a
"workplace", the Board
found that Blue Mountain was a fixed workplace, in that there is a
defined area encompassing a ski hill, buildings, parking lots, and
a swimming pool from which Blue Mountain operates its business.
Accordingly, the Board held that the area of the resort where the
Blue Mountain employees perform their work functions is a
"workplace" for the purposes of section 51(1) of the Act,
and that the fact that an employee is not physically present within
an area of that "workplace" at the time of the incident
does not mean that that particular area is not part of the
Accordingly, the Board held that the drowning of a guest in the
Blue Mountain swimming pool triggered the OHSA reporting
obligation, as it involved a person who suffered a fatality at a
Divisional Court Decision
Blue Mountain appealed the Board's decision to the
Divisional Court (the Court), largely on the basis that the
Board's construction of the word "workplace" led to
an absurd result, as it included all 750 acres of the resort, which
were both a place of work and a recreational facility. Blue
Mountain argued for an interpretation of "workplace" that
required 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."
The appeal was dismissed. While the Court did not accept Blue
Mountain's position regarding the construction of
"workplace", as it was not supported by the language or
purpose of the OHSA, it did find the Board's designation of the
entire Blue Mountain Resort as a "workplace"
unreasonable, in that it went significantly farther than necessary
for the purposes of disposing of the appeal. The Court held that
the guest drowned in the resort swimming pool, and that it was
common ground that the swimming pool was a place where one or more
workers work. Accordingly, the absence of a worker at the swimming
pool premises at the time of the occurrence did not diminish the
fact that it was a workplace and the Court determined that the
conclusion reached by the Board in this regard was not
The Court went on to state that while the Board's conclusion
that all 750 acres of the Blue Mountain Resort was a workplace was
unreasonable, what constituted a workplace would be dependent upon
the facts of each case. As workers and guests are often vulnerable
to the same dangers, physical hazards with the potential to harm
workers and non-workers should be subject to reporting and
This decision expands the scope of what employers had previously
understood to be their reporting requirements under the OHSA.
In order to determine whether an employer will be required to
report an incident involving a non-worker, the employer will need
to consider whether a worker could have been potentially affected
by the hazard that caused the incident. If the answer is
"yes", the employer is likely under an obligation to
report the incident to the Ministry of Labour.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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