June 03, 2011
Under the Occupational Health and Safety Act (OHSA), critical and fatal injuries must be reported to the provincial health and safety regulator, the Ministry of Labour. While this requirement is normally understood to necessitate reporting on injured workers, the divisional court of the Ontario Superior Court of Justice recently upheld an Ontario Labour Relations Board decision that injuries to non-workers must be reported to the Ministry of Labour in some cases.
The Blue Mountain Case
On December 24, 2007, a guest staying at the Blue Mountain Resort drowned in a swimming pool on site. The employer did not report this fatal incident to the Ministry of Labour (MOL) because the event did not involve a worker. However, on March 27, 2008, an MOL Health and Safety Inspector ordered Blue Mountain to report the fatality pursuant to Section 51(1) of the Occupational Health and Safety Act (OHSA). Under this section, employers must report to MOL any injury where a person is killed or critically injured from any cause at a workplace. Following an appeal by Blue Mountain, the Labour Board found that it is indeed a reasonable request to report any injury where “workers are vulnerable to the same hazards and risks as non-workers who attend at a workplace”. The employer, Blue Mountain in this case, held the position that it is both a place of work and a recreational facility where “critical injuries” such as fractures were “an expected and not-infrequent by-product” of skiing. Blue Mountain further questioned the applicability of this reporting responsibility in an environment such as a ski resort and insisted that MOL “will have expanded its reach to realms of activity that are completely unrelated to worker health and safety”. Also, the employer expressed concerns about the requirement under Section 51(2) of the OHSA to preserve the scene of the occurrence when a critical injury takes place due to the potential to seriously disrupt its operations.
This case prompted a closer look at the definition of a “workplace”. Blue Mountain’s interpretation of “workplace” varied from the definition in the OHSA. Blue Mountain argued for an interpretation of “workplace” which requires the “physical presence of a worker at a place where a worker works at the time at which an occurrence with a guest or other person takes place”. The OHSA, however, offers a different definition of “workplace”, stating that a workplace is “any land, premises, location or thing at, upon, in or near which a worker works” and, most importantly, does not require the physical presence of a worker. The Court noted that what constitutes a workplace is dependent on the facts of each individual case but in the case of Blue Mountain, it upheld the Labour Board’s decision that non-worker injures are reportable as reasonable and dismissed the application from the employer.
Implications for PSHSA Clients
An important implication of this decision is that employers must assess and investigate the hazards which caused the critical injury to occur, the context in which the injury took place and whether there is a potential connection with worker safety.
PSHSA will continue to monitor the impact if this decision, particularly for our education and municipal clients.