June 22 2011
A skier suffers a broken arm. A student is knocked unconscious during a physical education class. A patient dies in hospital. Although sad and unfortunate, such incidents have not generally given rise to an obligation to report to health and safety authorities. That is no longer the case following the Ontario Divisional Court decision in Blue Mountain Resorts.(1) In this case the court upheld an Ontario Labour Relations Board decision that all fatal and critical injuries to a person at a workplace must be reported to the Ministry of Labour. The decision has the potential to affect Ontario employers and constructors that are obliged by the Occupational Health and Safety Act(2) to report and preserve the scene of fatal and critical injuries.
In December 2007 a patron drowned in an unsupervised indoor swimming pool at the Blue Mountain resort. At the time, no Blue Mountain workers were in the pool area. Blue Mountain did not report the drowning to the Ministry of Labour because it did not involve a worker. In March 2008 a ministry inspector conducting a field visit at Blue Mountain learned of the drowning and issued an order that indicated that Blue Mountain had failed to notify an inspector of the "fatal injury to a person" and ordered Blue Mountain to report the fatality based on the literal wording of subsection 51(1) of the Occupational Health and Safety Act, which requires a constructor or employer to make a report to the ministry "[w]here a person is killed or critically injured from any cause at a workplace".(3)
Blue Mountain appealed the order to the Ontario Labour Relations Board, alleging that it was incorrect because the drowning incident did not involve a 'worker' or did not occur in a 'workplace'. Blue Mountain argued that an interpretation of subsection 51(1) of the act that would require the reporting of injuries to non-workers that occur at a location where no worker is present at the time of the injury would be absurd. Blue Mountain asserted that the purpose of the act is to ensure the safety of workers, rather than non-workers, and that the absence of workers from the location of the accident meant that the location was not a workplace. In taking this position, Blue Mountain argued that the word 'person' in subsection 51(1) of the act should be interpreted to mean 'worker'.
The board upheld the order. It agreed that the purpose of the act is to protect workers, but it did not agree that 'person' means 'worker' in subsection 51(1). The board noted that the term 'person' is not defined in the act, while 'worker' is defined as "a person who performs work or supplies services for monetary compensation".(4) The board held that a 'worker' was a category of 'person' and that the terms were not synonymous. Furthermore, the term 'person' is broader than the definition of 'worker', as it "is generally understood to refer to the broadest range of people".(5) The numerous provisions in the act in which the term 'person' is used establish that 'person' cannot be equated with 'worker'. In the board's view, had the legislature intended that employers report accidents only involving workers, it would not have used the word 'person' in subsection 51(1) of the act.
The board rejected the argument that the pool was not a 'workplace'(6) because no workers were present at the time of the accident. The board found the entire 750 acres of the Blue Mountain resort to be a 'workplace' for the purposes of subsection 51(1). The board noted that Blue Mountain had a defined area and workers would perform work functions in all or parts of the defined area on a daily basis. The absence of a worker from a particular location within the defined area did not mean that the particular location ceased to be a 'workplace'.
The board also declined to interpret subsection 51(1) of the act as applying only to injuries involving workers on policy grounds. It accepted the ministry's position that notification of all critical and fatal injuries to all persons is intended because workplace hazards that injure non-workers may also endanger workers.(7)
Blue Mountain sought judicial review of the board's decision.(8) The court concluded that the board's logic was justified in light of the act's purpose. The court noted that "[c]onditions and hazards that result in the death or critical injury of a non-worker have the potential to cause similar harm to workers",(9) and that the reporting obligation brings these potential hazards to the attention of the ministry - to hold otherwise would diminish oversight and reduce worker safety.
The court agreed with the board that the physical presence of a worker was not necessary to make a location a 'workplace'. The court noted that the obligation to report an accident under subsection 51(1) is not entirely based on the timing of the accident, but on the "causative nexus between prevailing conditions and the resulting harm".(10) The court did not agree that Blue Mountain's entire 750-acre property was a 'workplace'. In the court's view, that finding went further than was necessary to resolve the appeal. However, this had no practical effect on the outcome of the judicial review, as the court found that despite the absence of a worker from the swimming pool area at the time of the accident, the area was a 'workplace'. As a result, the decision reached by the board was not unreasonable and the court dismissed the application for judicial review.
A wide variety of workplaces will be affected by this decision. All businesses that provide services to the public at large or other non-workers (eg, volunteers) may face the requirement to report fatal and critical consequences involving these persons. As subsection 51(1) requires a report to be made where any person is critically injured or killed from any cause at a workplace, the obligation to file a report is not limited to critical injuries or fatalities arising from an accident. Furthermore, in light of the broad interpretation of the term 'workplace' affirmed by the court, there is no requirement that a worker be performing work at or near the site of the critical injury or fatality in order for the reporting obligation to be triggered. As a result, it is reasonably expected that this decision will require almost constant reporting from some employers.
Aside from the reporting obligation, serious implications could arise from the obligation to hold the scene of a fatality or critical injury. Subsection 51(2) of the act requires that the scene of an injury not be disturbed without the permission of a ministry inspector, except to:
Although Blue Mountain raised the issue of the impact of cordoning off an accident scene until released by the ministry, neither the board nor the court addressed this issue. With no guidance on this obligation for incidents involving non-workers, employers and constructors must assume that the obligation applies in full, meaning that the scene of a critical injury or fatality will need to be held until released by a ministry inspector.
In light of the potentially onerous obligations placed on employers and constructors and the possible consequences of failing to comply with them,(11) and until the ministry issues an amendment to the act or its regulations or a clear policy directive, employers and constructors should ensure that they have incident-reporting policies, strategies and procedures in place. Employers and constructors in jurisdictions other than Ontario should be aware of the various obligations applicable in their jurisdiction and ensure that their incident-reporting policies, strategies and procedures comply with those obligations. In Ontario, incident reporting policies should require notice and a written report to be given to the ministry and the scene to be preserved when a 'person' is killed or critically injured at a workplace, from any cause. Front-line supervisors should be provided with information about whom within the organisation to notify in the event of a fatal or critical injury; that individual should be provided with the ministry's contact information in case notice and a report must be provided.
Organisations that stand to be affected significantly by the outcome of the Blue Mountain decision include those in the healthcare, municipal, public transit and other sectors where large numbers of non-workers are regularly in the workplace. They should give a regular ministry contact advance notice that increased notifications will be occurring. In addition, standard letters and reporting forms should be prepared and made available to ensure that minimum statutory notification and written reporting requirements to the ministry, health and safety committee and trade union are met and discharged expeditiously.
For further information on this topic please contact Cheryl A Edwards, Jeremy Warning or Shane D Todd at Heenan Blaikie LLP by telephone (+1 416 360 6336), fax (+1 416 360 8425) or email (email@example.com, firstname.lastname@example.org or email@example.com).
(1) Blue Mountain Resorts Limited v Ontario (The Ministry of Labour and the Ontario Labour Relations Board), 2011 ONSC 3057 [Blue Mountain 1].
(2) RSO 1990, c O1.
(3) Occupational Health and Safety Act, subsection 51(1).
(4) Occupational Health and Safety Act, subsection 1(1).
(5) Blue Mountain Resorts Limited v Ontario (Labour), 2009 CanLII 13609 at para 69 (OLRB) [Blue Mountain 2].
(6) Defined in subsection 1(1) of the act to mean "any land, premises, location or thing at, upon, in or near which a worker works".
(7) Blue Mountain 1, at para 61.
(8) There is no right to appeal a decision of the board. A judicial review will generally focus on whether the board had the authority to make the decision that it did, and whether it properly exercised that authority. The court will not consider whether it would have made the same decision, but will look at whether the decision is reasonable in all of the circumstances.
(9) Blue Mountain 2, at para 17.
(10) Blue Mountain 2, at para 26.
(11) The ministry considers failure to notify and failure to hold the scene to be serious offences and will almost always prosecute failure to comply with these obligations.
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