In December 2007 a guest at the Blue Mountain Resort died while
swimming in the unattended indoor pool. Blue Mountain did not
file a notice under section 51(1), the notice of a death or
critical injury section of the Occupational Health and Safety Act
("OHSA"). When the Ministry of Labour inspector
learned of the drowning, he issued an Order requiring the company
to file the Notice. Blue Mountain appealed that decision to
the Ontario Labour Relations Board, (the "Board").
The Board upheld the Order, and on Judicial Review to the
Divisional Court, the Board's decision was affirmed (see our June 30, 2011 blog on the Divisional Court
decision). The Ontario Court of Appeal has, on February
7th, overturned those decisions.
In allowing the appeal and setting aside the decisions of the
Divisional Court and the Board, the Court of Appeal held that the
decision would lead to the absurd conclusion that every death or
critical injury to anyone, anywhere, whatever the cause, must be
reported. The Court held that there was no reasonable
connection between what actually happened and a risk to worker
safety at the site. Further, the court held that the approach
of interpreting public welfare statutes liberally and in a manner
that will give effect to its broad purpose and objective does not
call for a limitless interpretation of the legislation beyond what
was intended by the legislature and has the potential to give the
Ministry of Labour and its inspectors significantly intrusive
powers for beyond what is reasonably required. The
interpretation is therefore unreasonable.
So how does an employer now interpret section 51(1) of the OHSA
in light of the fact that many workplaces have both workers and
non-workers alike? The court has stated that section 51(1) is
not engaged unless there is some reasonable nexus between the
hazard giving rise to the injury and a realistic risk to worker
safety. However they have said that the section intends the
requirement to extend beyond workers themselves and to encompass
workers and non-workers alike. The court went on to interpret
s.51(1) as follows.
Section 51(1) of the OHSA will be engaged where:
A worker or non-worker is killed or critically injured;
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; AND
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.
We will keep our readers posted on whether the Crown will seek
leave to appeal to the Supreme Court of Canada.
The CCP team can assist employers in all areas touching on their
obligations under the OHSA, including compliance, appealing orders
to the Labour Board, investigations into critical injuries and
defending charges under the OHSA.
Click hereto review the Court of Appeal's
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