Thank goodness! The ruling that an accidental drowning
death of a guest at a resort had to be reported by the resort owner
under occupational health and safety law in Ontario as if it was a
death or critical injury occurring at a workplace has been
overturned. The Ontario Court of Appeal is to be
congratulated on injecting some much needed common sense.
Seldom do we quote at length from a judgment, but when a court
says something simply, succinctly and with evident good sense, it
deserves recognition. Here is what the court said:
 For the reasons that follow, I would set aside the decisions
of the Divisional Court and the Board. The interpretations
they gave to s. 51(1) of the Act would make 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. This leads to the absurd
conclusion that every death or critical injury to anyone,
anywhere, whatever the cause, must be reported. Such an
interpretation goes well beyond the proper reach of the Act and the
reviewing role of the Ministry reasonably necessary to advance the
admittedly important objective of protecting the health and safety
of workers in the workplace. It is therefore unreasonable and
 In my view, a proper interpretation of the Act requires
that there 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. There is no such nexus here.
 Sometimes a swimming pool is just a swimming pool.
Another quote from the court is justified to show just how
absurd was the original decision. The court noted that if
such an incident had to be reported, then the site would have to be
shut down under the legislation for investigation. The court
noted the consequences in a few examples:
 Mr. Den Bok acknowledged that if there were a critical
injury to a hockey player or a spectator during a Toronto Maple
Leaf hockey game at the Air Canada Centre, it would have to be
reported to the Ministry. If the injury occurred on the ice,
the hockey game would have to be shut down – televised or not
– until the premises were released by a Ministry
inspector. He took the same position with respect to a wide
variety of other circumstances. For instance, he took the
view that reporting to the Ministry would be mandatory in the case
of customer injuries at a Canadian Tire Store or other retail
outlet; in the case of injuries sustained by the public on highways
patrolled by police (because the police or other workers may arrive
after the accident, or may have passed by on a prior occasion); and
in the case of worshippers who may suffer a heart attack or other
critical injury at a religious institution (whether the services
would have to be halted pending Ministry release of the place of
worship, was left unsaid).
Thanks to the Ontario Court of Appeal for stopping this nonsense
before it could infect the thinking at other occupational
health and safety agencies in Canada.
If you want to read more, the full decision can be found here.
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.
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