Canada: Court Of Appeal Rejects Employers' Expanded Obligation To Report Critical And Fatal Injuries Under The OHSA

Last Updated: May 10 2013
Article by Paul Lalonde

Employers that routinely deal with the public in their workplace will be very pleased by a recent Court of Appeal decision in Ontario. In Blue Mountain Resorts Limited v. Ontario (Labour) (February 7, 2013) the Court of Appeal set aside a decision of the Divisional Court which had greatly expanded the circumstances in which employers are required to report deaths or critical injuries in the workplace under s. 51(1) of the Occupational Health and Safety Act (OHSA). The Divisional Court had held that employers are required to report all critical or fatal injuries regardless of whether the injured person was a worker or member of the public. The Court of Appeal rejected this interpretation and issued a decision which makes it clear that under s. 51(1) of the OHSA, an employer is only required to report such injuries where there is a reasonable nexus between the hazard giving rise to the death or injury and a realistic risk to worker safety at a workplace.

Readers of Focus may recall the Divisional Court's decision in Blue Mountain Resorts Limited v. Ontario (July 2011) (see "Divisional Court ruling confirms employers' expanded reporting obligations under the OHSA"). The Blue Mountain case arose after a guest at Blue Mountain resorts died while swimming in an unsupervised pool on the resort premises. An OHSA inspector ordered Blue Mountain to report the guest injury to the Ministry of Labour under s. 51(1) of the OHSA. Section 51(1) of the OHSA provides as follows:

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.

Blue Mountain took the position that it was not required to report deaths or critical injuries of guests at its recreational facility because the facility was not predominantly a workplace and a worker was not present at the site when the injury occurred. Blue Mountain's position was unsuccessful before the Ontario Labour Relations Board and the Divisional Court. As noted above, the Divisional Court held that under s. 51(1) an employer was required to report all critical and fatal injuries in the workplace regardless of whether the injured person is a worker or a member of the public. This decision drew considerable attention for its far-reaching consequences. Blue Mountain launched an appeal with Conservation Ontario and the Tourism Industry Association of Ontario intervening.

Before the Court of Appeal

In its decision, the Court of Appeal wasted little time in rejecting the Divisional Court's interpretation of the OHSA:

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 cannot stand.

The Court of Appeal accepted the fact that public welfare legislation, such as the OHSA, must be interpreted liberally in a manner that will give effect to its broad purpose and objective. The Court nevertheless cautioned that such generous interpretations can extend the legislation far beyond what was intended.

In its view, this was the problem that arose with the interpretation endorsed by the Divisional Court. Under that interpretation, s. 51(1) would be triggered whenever a non-worker dies or is 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. Although at first blush this interpretation may seem reasonable, the Court of Appeal pointed out the absurdities this interpretation gives rise to when read in conjunction with s. 51(2) of the OHSA. Section 51(2) requires that an injury site be preserved until released by a Ministry inspector. It states:

Preservation of wreckage

51(2) Where a person is killed or is critically injured at a workplace, no person shall, except for the purpose of,

(a) saving life or relieving human suffering;

(b) maintaining an essential public utility service or a public transportation system; or

(c) preventing unnecessary damage to equipment or other property,

interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector.

The Court provided numerous examples to illustrate the combined effect of the Divisional Court's interpretation of s. 51(1) and the requirement in s. 51(2). If there was 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, and the hockey game would have to be shut down until the premises were released by a Ministry inspector. The case would be the same for customer injuries at retail outlets, injuries sustained by the public on patrolled highways, and even where a worshipper suffers a heart attack at a religious institution. In all such situations, the injury would be reported to the Ministry, and the workplace secured until cleared by an inspector. The Court of Appeal rejected the notion that the Legislature intended these results in the OHSA.

The Proper Interpretation

In determining the proper interpretation to be afforded s. 51(1), the Court of Appeal considered the section in its ordinary sense in the context of the OHSA as a whole, keeping in mind the public welfare purpose of the OHSA. The Court of Appeal accepted that the legislature intended the reporting requirement to extend beyond injuries to workers and to encompass physical hazards with the potential to harm workers and non-workers alike. Nevertheless it rejected the notion that any death or critical injury involving any person at a place frequented or sometimes frequented by workers is caught by s. 51(1). Instead, what was necessary in order for an incident to be reportable was some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the site of the incident. The site of the incident must be a place where a worker is carrying out his or her employment duties at the time the incident occurs, or one where a worker might reasonably be expected to be carrying out such duties in the ordinary course of their work. The Court of Appeal summarized its interpretation of s. 51(1) with the following clear direction:

In summary, the notification and reporting requirements of s. 51(1) of the Act are engaged where:

  1. a worker or non-worker ("any person") is killed or critically injured;
  2. 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
  3. 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").

In applying this interpretation to the incidents at the Blue Mountain Resort, the Court of Appeal noted that there was no evidence that the guest's death in the swimming pool was caused by any hazard that could affect the safety of a worker. The guest either drowned while swimming or had a heart attack. The purpose of the OHSA is to further worker safety and not to capture death by natural causes. Furthermore, the Court of Appeal noted that it is not part of the purpose and objective of the OHSA to protect non-workers. Instead, the focus is on the worker, the employer and the workplace, and injuries that pose a risk in that connection. The Court of Appeal allowed Blue Mountain's appeal and set aside the decision of the Divisional Court.

In our view

One of the problems with the interpretation adopted by the Divisional Court was that it had the effect of elevating the OHSA from a statute dealing exclusively with occupational health and safety, to a general public safety statute. As the Court of Appeal noted, this was not the intention of the Legislature. Not only would this result impose on employers an increased reporting obligation, the requirement to preserve a site until cleared by the Ministry would be unworkable for many organizations, like Blue Mountain. In addition to this, the Ministry of Labour would not be positioned to respond to the overwhelming increase in reports that it would inevitably receive. Employers, particularly those that deal with the public, can take comfort from the Court of Appeal's decision. The obligation to report in s. 51(1) will only arise where there is a reasonable nexus between the hazard giving rise to the death or injury and a realistic risk to worker safety at a workplace.

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In Blue Mountain Resorts Limited v. Ontario (Labour) (February 7, 2013) the Court of Appeal set aside a decision of the Divisional Court which had greatly expanded the circumstances in which employers are required to report deaths or critical injuries in the workplace under s. 51(1) of the Occupational Health and Safety Act (OHSA). The Divisional Court had held that employers are required to report all critical or fatal injuries regardless of whether the injured person was a worker or member of the public. The Court of Appeal rejected this interpretation and issued a decision which makes it clear that under s. 51(1) of the OHSA, an employer is only required to report such injuries where there is a reasonable nexus between the hazard giving rise to the death or injury and a realistic risk to worker safety at a workplace. For more, see "Court of Appeal rejects employers' expanded obligation to report critical and fatal injuries under the OHSA" on our What's New page.

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