The Ontario Court of Appeal recently released its
decision in Blue Mountain Resorts Limited v. Ontario
(Labour),2013 ONCA 75, overturning a Divisional Court
decision (2011 ONSC 3057) on the duties of employers and
contractors under the Occupational Health and Safety Act
(OHSA) to report a death or a "critical injury" to the
Ministry of Labour (Ministry). Our previous bulletin on the onerous
requirements on employers resulting from the Divisional Court
can be found here.
In this case, a guest of Blue Mountain Resorts drowned in the
resort swimming pool. The Divisional Court ruled that the resort
swimming pool was a "workplace," under the definition in
OHSA,and that employers are required to report all deaths
and critical injuries occurring at a workplace and to preserve the
scene of the occurrence, regardless of whether: (a) the injured
individuals are workers; or (b) the incidents involve hazards that
The Court of Appeal ruled that requiring employers to contact
the Ministry and to preserve the site of every critical injury or
death at a workplace, regardless of cause or if the person involved
was a worker, was an absurd interpretation of the legislation. In
order to give effect to the purpose of the OHSA – to protect
worker safety – the Court of Appeal found that the duty
to report and to preserve the site of a critical injury or death
only arises 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".1 The Court
of Appeal stated, "[s]ometimes a swimming pool is just a
swimming pool"2 and found that, in this case, there
was no relationship between the cause of death and worker
Although the Court of Appeal decision thankfully narrows the
circumstances where the Ministry must be contacted and the scene
must be preserved in the event of a death or critical injury in the
workplace, it remains to be seen how the Ontario Labour Relations
Board and the courts will interpret this new requirement for a
"reasonable nexus" between the cause of the occurrence
and worker safety.
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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