Williams HR Law LLP

Employers Relieved As Ontario Court Of Appeal Overturns “Absurd” Interpretation Of OHSA Reporting Obligations

March 5, 2013

[vc_row][vc_column width=”1/3″][vc_single_image image=”2276″ img_size=”full”][/vc_column][vc_column width=”2/3″][vc_column_text]On February 7, 2013, the Ontario Court of Appeal released its decision in Blue Mountain v. Ontario (The Ministry of Labour) overturning the rulings of the Ontario Divisional Court and the Ontario Labour Relations Board (OLRB) that Blue Mountain Resort had failed to report the drowning death of a guest pursuant to their obligations under section 51(1) of the Occupational Health and Safety Act (“OHSA”).   Section 51(1) requires an employer to report any fatality or “critical injury” which occurs to a person at a workplace to the Ministry of Labour.

In Blue Mountain, a guest of the Resort drowned in an unsupervised swimming pool on Christmas Eve 2007. The Resort did not report the fatality to the Ministry on the basis that the accident did not involve a worker and had not occurred in a “workplace” per se given that no employees were present at the time of the incident. When the drowning came to the attention of a Ministry of Labour inspector in March of 2008, the inspector issued a compliance order directing the Resort to report the drowning to the Ministry pursuant to section 51(1) of the OHSA.

The Resort appealed the decision to the OLRB and then to the Ontario Divisional Court. According to the decisions released in these appeals, because the OHSA referred to both “workers” and “persons” in various provisions, the intention of the legislature must have been to define these terms differently. The Divisional Court further held that hazards to non-workers could also affect workers and therefore it was within the powers of the Ministry of Labour to investigate.

The Court of Appeal overturned the interpretation of the reporting requirements by the OLRB and the Divisional Court stating that such an interpretation would make virtually every place in the province of Ontario a “workplace” because a worker may, at some time, be at that place. This would lead to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. The Court of Appeal concluded that the OHSA only requires employers to report critical injuries or deaths that occur in a workplace which have a nexus to a realistic risk to worker safety.

The decision by the Court of Appeal limits an employer’s reporting and notification obligations under section 51(1) to the following situations:

  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”);
  3. 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 (“from any cause”).

Significance for Employers:

This is a welcome decision for employers as it provides reasonable limitations on the reporting obligations under section 51(1) of the OHSA. One new challenge that flows from this decision for employers will be determining whether a fatality or critical injury can be said to have a reasonable nexus to worker safety at the workplace, as the Court of Appeal provided no guidance in making this determination. In any case of a critical injury or fatality at the workplace, it is imperative that employers consult with their legal counsel to determine a proper course of action.

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.

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