Canada: The HR Space: Ontario Court Of Appeal Clarifies Employers’ Workplace Incident Reporting Duty

Last Updated: February 20 2013
Article by Rosalind H. Cooper and Peter Pliszka

The Ontario Court of Appeal released its much-anticipated decision in the case of Blue Mountain Resorts Limited v. Ontario (Labour)  (PDF) on February 7, 2013, and allowed Blue Mountain's appeal. In doing so, the Court of Appeal has finally clarified the confusion that resulted from the decision of the Ontario Labour Relations Board, which was subsequently affirmed by the Ontario Divisional Court. The Court also provided some guidance for employers when determining whether they need to report incidents to the Ministry of Labour.

Background of Incident

The decision in Blue Mountain related to a rather unusual situation involving a hotel guest that drowned at the Blue Mountain resort facility in a swimming pool. Surprisingly, the Ministry of Labour took the position that the swimming pool was a "workplace" and Blue Mountain had a duty as an employer under section 51(1) of the Ontario Occupational Health and Safety Act (OHSA) to report the incident because it was a death "incurred by a person from any cause at a workplace".

When Blue Mountain failed to report this fatality to the Ministry, it issued an order requiring Blue Mountain to do so and citing a contravention of section 51(1) of OHSA against Blue Mountain for having failed to report. Blue Mountain appealed the order to the Ontario Labour Relations Board, which upheld the Ministry's order on March 23, 2009.  Blue Mountain then brought an application for judicial review of the Board's decision to the Ontario Divisional Court.

The Divisional Court dismissed the application by Blue Mountain on May 18, 2011 and held that the determination by the Board that the swimming pool was a workplace was reasonable because employees of Blue Mountain would be present in the swimming pool area from time to time to check and maintain the pool.

Statutory Interpretations Cannot Lead to Absurdities

The Court of Appeal considered the submissions of the parties, as well as those of two employer-based organizations that were granted intervenor status in this appeal: the Tourism Industry Association of Ontario and Conservation Ontario.  The Court of Appeal allowed Blue Mountain's appeal and set aside the Divisional Court decision, as well as the decision of the Board.  The Court of Appeal held that the interpretation placed upon section 51(1) of OHSA in those decisions would result in an absurdity.

The Court of Appeal judges agreed with the position of Blue Mountain and the intervenors that the Ministry's interpretation, which was accepted by the Board and the Divisional Court, would render virtually every place in the Province of Ontario a "workplace" because a worker may, at some point, be in that location. That would mean that virtually every death and critical injury that occurs in Ontario would have to be reported to the Ministry of Labour, whose mandate is worker safety. The Court of Appeal held that such an interpretation would be unreasonable and therefore could not be permitted to stand.

The Court of Appeal commented on several previous decisions of courts in occupational health and safety matters, including Court of Appeal decisions, wherein the Courts held that broad liberal interpretations should be afforded to public welfare statutes. However, the Court of Appeal also stated that this generous approach "does not call for a limitless interpretation of their provisions" because, otherwise, this could extend the reach of legislation far beyond that intended by the legislature. The Court of Appeal cited support for this position in several Supreme Court of Canada cases, which have held that broad language may be given a restrictive interpretation in order to avoid absurdities

The Court of Appeal held that where workers and non-workers are subject to the same risks of death or critical injury, then an incident may be reportable.  However, the interpretation adopted by the Board and Divisional Court was based entirely upon a location-based analysis which the Court of Appeal found to be faulty.

The Court gave some examples of incidents that would require reporting and shutting down premises based on a location-based analysis, including an injury to a hockey player or spectator during a game at the Air Canada Centre; a customer injury at a retail store; worshippers injured at a religious institution; injuries sustained by the public on highways patrolled by police; and a drug overdose, murder or natural death in a hotel room.

Nexus to Worker Safety

The Court of Appeal instead adopted the position that was submitted on behalf of Tourism Industry Association of Ontario. The Court held that there must be some reasonable nexus between the hazard giving rise to the death or critical injury, and a realistic risk to worker safety at that location in order to trigger for reporting requirement under section 51(1). The Court held that such a nexus did not exist in the case of the drowning of the hotel guest and that "sometimes a swimming pool is just a swimming pool".

In its analysis of this issue, the Court of Appeal considered the broader implications of the interpretation given to section 51(1) of OHSA by the Board. In particular, the Court noted that Blue Mountain could experience as many as 39 accidents related to skiing in a February weekend, which means that, under the Ministry's interpretation, Blue Mountain would need to contact the Ministry of Labour 39 times over the weekend to report incidents involving its guests.

The Court of Appeal also referred to section 51(2) of OHSA which prohibits the scene of an incident from being altered until such time as it is released by the Ministry of Labour. That means that ski slopes at Blue Mountain would have to be closed, either completely or in part, some 39 times over a weekend in February.

The Court of Appeal also pointed to evidence that had been tendered previously that closures of ski hills would present potential hazards for both skiers and snow boarders using the runs in the winter, and to mountain bikers in the summer. The Court noted that this would result in significant disruption to the resort and its operations. This was confirmed by evidence from the Ontario Snow Resorts Association, which had testified at the hearing before the Board that there were approximately 7,000 accidents at ski resorts across Ontario during the 2007-2008 ski season.

Test to be Applied in Determining Reporting Requirements

The Court of Appeal clearly set out the test for reporting under section 51(1) of OHSA. Reporting is required where a worker or non-worker is critically injured or killed from an incident that occurs at a place where a worker is working or might be expected to be working as part of his or her employment, and where there is some reasonable nexus between the hazard giving rise to the injury and a realistic risk to a worker safety issue.

The Court of Appeal applied this test to the drowning at Blue Mountain and held that the final part of the test was not satisfied because there was no evidence of any hazard that could affect the safety of a worker. In particular, the incident did not give rise to worker safety concerns in that it is not likely that a Blue Mountain employee would drown while swimming in the pool during the course of his or her employment duties.

The Court of Appeal has now provided employers with some guidance on interpretation of section 51(1) of OHSA, and clarified that there is no longer a need to report all critical injuries or fatalities that occur in workplaces regardless of cause, as had been the case for some four years between the Board ruling and the Court of Appeal decision.

Rosalind Cooper, Peter Pliszka and Andrew Baerg of Fasken Martineau represented the intervenor, Tourism Industry Association of Ontario, at the Ontario Court of Appeal hearing.

The HR Space is edited by Louise Béchamp, Karen M. Sargeant and Brian P. Smeenk.

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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