On February 7, 2013, the Ontario Court of Appeal released its
decision in Blue Mountain Resorts Limited v. Ontario
(Labour),1 overturning the order of the Ministry of
Labour Inspector that the resort had failed to report the drowning
death of a guest pursuant to their obligation under subsection
51(1) of the Occupational Health and Safety Act (the
"Act") because it was "a death or critical injury
incurred by a person at a workplace".
The Ontario Labour Relations Board and Divisional Court agreed
with the inspector, finding that the swimming pool was a
"workplace" because some employees of Blue Mountain must
have been present in the pool area at some other time to perform
The issue on appeal was whether Blue Mountain was required to
report the guest injury to the Ministry of Labour pursuant to their
obligations under subsection 51(1) of the Act. The Court of Appeal
held that the lower courts' interpretation of the Act would
lead to absurd results, as it had the effect of making 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. As a result, every critical injury
or "death to anyone, anywhere, whatever the cause, must be
The Court of Appeal rejected this reasoning, and provided the
following framework for when an employer's duty to report
pursuant to subsection 51(1) of the Act will be engaged:
a) a worker or non-worker ("any person") is killed or
b) 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"); and
c) 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").
Applying this criteria, the Court of Appeal held that, in the
circumstances, Blue Mountain did not have a duty to report the
guest's death to the Ministry of Labour because "[t]here
was no evidence that the guest's death was caused by any hazard
that could affect the safety of a worker, whether present or
passing through." The inspector's order against Blue
Mountain was therefore set aside.
In the wise words of the Court of Appeal, "sometimes a
swimming pool is just a swimming pool."
The full text of the decision can be accessed
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.
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.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).