The Ontario Court of Appeal this week clarified and narrowed the
definition of "workplace" under the Occupational Health
and Safety Act. At the same time, the reasons in the case
may result in even more uncertainty about when an accident or
injury to a person who is not a worker must be reported.
The facts of Blue Mountain Resorts Ltd. v. Ontario are
relatively simple - at a ski resort, a guest died of a heart attack
in an indoor pool. The Ontario government took the position
that the pool, being a place where workers covered by the Act
worked from time to time, was a "workplace" and that the
resort was required to report the death to the Ministry of Labour.
The resort's position, supported by the Court of Appeal, was
that if an indoor pool was indeed a workplace because workers may,
from time to time, be around that pool, then every location within
the province was in fact a workplace and every accident or injury
in the province must be reported. For example, the court
noted that if the government's position were adopted, every
accident taking place on provincial roads would have to be reported
to the Department of Labour (and the accident scene preserved)
because workers, including police officers, use the highways.
Said the Court of Appeal,
Would parents have to report to the
ministry if their child were injured at home because they had hired
a nanny? 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?
The Court of Appeal ruled, accordingly, that the indoor pool was
not a workplace for the purpose of reporting deaths or injuries.
The court noted that the purpose of the legislation is
"intended to guarantee a minimum level of protection for the
health and safety of workers." The government's
interpretation extended the reach of the legislation far beyond
what was intended by the legislature and gave the Ministry of
Labour jurisdiction far beyond what was needed to carry out the
purposes of the Act. In order for a death or injury to be
reported, there would have to 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."
While the outcome of the case seems rational, the result also
leaves doubt for the future about whether the Act will apply in
particular circumstances. Where a person who is a worker
suffers a death or injury, the location of that death or injury
would seem to be a workplace and the duty to report engaged.
Where a person who is not a worker suffers a death or injury,
however, the question of whether or not the duty to report is
engaged would seem to require consideration of whether there is
"reasonable nexus between the hazard giving rise to the death
or critical injury and a realistic risk to worker safety at that
site." This flexible definition of workplace, the idea that a
particular site might be a workplace in some cases and not a
workplace in other cases depending on the cause of the injury and
consideration of the risk causing the injury, is likely to lead to
further confusion about whether an injury or death must be
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