Canada: The Second Opinion: Ontario Court Of Appeal Limits Reach Of Worker Safety Legislation With New Test For Reportable Injuries

Last Updated: February 26 2013
Article by Kirsten Thompson

Most Read Contributor in Canada, September 2018

"Sometimes a swimming pool is just a swimming pool."

With that pronouncement, the Ontario Court of Appeal righted what it described as the "absurd" result of a literal interpretation of worker safety legislation that saw a resort sanctioned for failing to report to the Ministry of Labour the death of a guest in its swimming pool.

The Occupational Health and Safety Act ("OHSA") requires employers to report any "critical injury" or fatality to any "person" at a "workplace".The Ontario Labour Relations Board ("OLRB") and a lower Court held that this obligation included those incidents in which a non-worker died or was critically injured at or near a place where a worker is working, has passed through, or may at some other time work, regardless of the cause of the incident. The Court of Appeal held that this literal interpretation was unreasonable.

The decision by the Court of Appeal in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 clarifies the circumstances in which employers are required to report a critical injury or fatality suffered by a non-worker under the OHSA.

The Facts

Blue Mountain operates a full service ski resort in Collingwood, Ontario. On December 23, 2007 a guest of Blue Mountain drowned in an unsupervised swimming pool. Believing the incident did not trigger any workplace safety reporting obligations, Blue Mountain did not report the death to the Ministry of Labour. The accident came to the attention of an Ontario Ministry of Labour Inspector in March of 2008 and the Inspector issued a compliance order directing Blue Mountain to report the drowning to the Ministry of Labour pursuant to section 51(1) of the OHSA. This section requires an employer to immediately report to the Ministry of Labour a fatality or "critical injury" which occurs to a "person" at a workplace:

51. (1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.

In addition, section 51(2) of the OHSA imposes obligations upon employers to preserve the scene of a fatality or "critical injury" until the scene has been released by an inspector. The term "critical injury" is defined by Regulation and includes, among other things, jeopardy to life, unconsciousness, limb fractures or amputations, serious burns or blood loss, or loss of sight.

The Ministry of Labour maintained that the pool was a "workplace" within the meaning of the OHSA and that the plain wording of the section required Blue Mountain to report.


Blue Mountain appealed the Inspector's order to the OLRB pursuant to section 61 of the OHSA. At the hearing of the Appeal before OLRB, Blue Mountain argued that the interpretation being given to s. 51(1) was overbroad. The resort called evidence that, under that interpretation, there could be as many as 24 "critical injuries" on a typical Saturday during ski season at the resort. Blue Mountain argued that the preserving the scene requirements in section 51(2) meant that on the busiest weekend of the season up to 39 runs would have to be closed or narrowed to preserve the scene. Blue Mountain called evidence that being forced to close or narrow ski runs would create more hazards as a result of barricades.

In response, the Ministry of Labour argued that the purpose of the broad reporting requirement was to ensure that the Ministry was made aware of situations that created risks to workers, the very purpose of the legislation.

The OLRB accepted the Ministry's submission and held that the pool area was a "workplace". Even though no evidence was called about the work performed in the pool area, the OLRB "inferred" based on "general and common knowledge" that at least one employee of Blue Mountain enters the pool area at least once each day, and therefore qualified as a "workplace".

Divisional Court

Blue Mountain's application for judicial review was dismissed by the Divisional Court, whichupheld the OLRB's finding that the plain wording of the section required that a critical injury or fatality to any "person" had to be reported. The Divisional Court also agreed with the OLRB's finding that the pool area was a "workplace" despite there being no workers present or involved in the accident.

Court of Appeal

Blue Mountain appealed further to the Ontario Court of Appeal. The Court held that while a technical reading of the OHSA offered some support for the OLRB's interpretation, the practical result of the approach taken by the OLRB was that the reach of the legislation was extended far beyond what was necessary to protect worker safety.

The Court embraced the doctrine that states that where there are competing interpretations of a law, it ought to be interpreted in a manner which avoids absurd results. It was held by the Court that the OLRB's approach could yield a number of absurd results, and the Court was not above invoking a threat to the country's national past time to drive the point home:

[The Inspector] 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...


One can envision endless examples that would be caught by the Board's interpretation, all without any causal relationship with a workplace safety issue.Would parents have to report to the Ministry if their child were injured at home because they had hired a nanny?Does a roller coaster become a "workplace" when a guest is injured while riding on it?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?

While the Court of Appeal rejected the "limitless scope" of the OLRB interpretation, it did not completely accept Blue Mountain's interpretation,which would have limited the notice and reporting requirements to only those situations where a worker is actually present at the scene of the accident. The Court chose a middle ground, interpreting an employer's reporting obligation under the OHSA as follows:

I would interpret s. 51(1) to provide that the Ministry must be notified of a death or critical injury at a site, and the requisite report provided, where there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at a workplace. A workplace is where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work.

Implications for Employers

Employers now have the benefit of a two-part test to evaluate whether to report critical injuries and fatalities involving non-workers to the Ministry of Labour. A reportable accident will be one:

  • that has taken place at the "workplace" (broadly defined to include any area where a worker might reasonably be expected to be working in the ordinary course of their employment); and
  • where there was a realistic chance that the hazard involved could put the safety of workers at risk.

Employers will welcome this decision as it makes it clear that not all critical injuries or fatalities to non-workers are reportable.

My colleague, Christopher McHardy, has also written a post on this decision for McCarthy Tétrault's British Columbia Employer Advisor blog which can be found here.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Norton Rose Fulbright Canada LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions