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29 May 2013
Ontario Labour Relations Board and previous court rulings
Ontario Court of Appeal decision
Employers operating in multiple Canadian jurisdictions
On February 7 2013 the Ontario Court of Appeal handed down its highly anticipated decision in Blue Mountain Resorts Limited v Ontario (Ministry of Labour and Ontario Labour Relations Board).(1) It found that Ontario's Occupational Health and Safety Act(2) does not require employers to report every fatal or critical injury to any person at a workplace. Rather, the act requires employers to report only critical injuries or deaths that occur at a workplace which have a reasonable nexus to a realistic risk to worker safety.
On Christmas Eve 2007 a patron drowned in Blue Mountain Resort's unsupervised swimming pool. No workers were present at the time of the incident. Blue Mountain did not report the fatality to the Ministry of Labour. It reasoned that the incident did not involve a worker and had not occurred in a 'workplace' per se, given that no resort employees had been present.
In March 2008 a Ministry of Labour inspector conducting a routine visit to the resort learned of the drowning and issued an order to Blue Mountain, citing it for failing to report the fatality under the act. In making the order, the inspector determined that Section 51(1) of the act requires an employer to report critical injuries to persons who are not workers, as well as workers. Section 51(1) states that:
"Where a person is killed or critically injured from any cause at a workplace, 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."
The resort appealed the order to the Ontario Labour Relations Board. The board upheld the order, concurring with the ministry's submission that the act requires reporting of all critical injuries and fatalities to any "person" in a "workplace".(3) The resort argued that if reporting of critical injuries or fatalities to all persons is required, it would have been required to preserve the accident scene, which would have resulted in tremendous disruption to the resort. The board declined to comment on that argument because, in its view, the order issued to the resort cited it only for failing to report the fatality. Blue Mountain had the board's decision judicially reviewed.
On judicial review, the Ontario Divisional Court found the board's decision to be reasonable.(4) Both the board and divisional court concluded that because the act refers to both 'workers' and 'persons' in various provisions, the legislature must not have intended the terms to be synonymous.
The divisional court also reasoned that hazards resulting in injuries to non-workers – or persons – can also affect workers, meaning that it is within the ministry's powers to investigate in order to determine whether there is a risk to the health and safety of workers (for further details please see "Every 'person' counts when reporting accidents in Ontario").
Five parties participated in the hearing before the Ontario Court of Appeal:
The resort and the intervenors all asserted that the board's interpretation of the statute had significant practical implications for employers (with just about every 'place' in Ontario being a 'workplace' for purposes of the act). The ministry argued that in keeping with the strict and clear wording of the act, all fatal or critical injuries in Ontario workplaces should be reported, and that it is the ministry's role – as regulator – to determine which incidents ought to be investigated. The court of appeal rejected the ministry's position.
The court succinctly set out its findings as follows:
"The interpretations [the Divisional Court and OLRB] gave to s. 51(1) of the [Occupational Health and Safety 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 [Occupational Health and Safety 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."(5)
The court of appeal ruled that "a proper interpretation of the act requires that there be some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site".(6)
Through this decision, the court of appeal has limited an employer's reporting and notification obligations to situations in which all of the following criteria are fulfilled:
Until now, employers and constructors may have been abiding by the board and divisional court decisions and reporting all fatal or critical injuries to the ministry. With the release of this decision, the court of appeal has interpreted Section 51(1) and provided the above-mentioned three-pronged test by which an employer or constructor is to determine whether an injury is reportable.
On its face, the test provided by the court of appeal appears fairly straightforward. Indeed, there is likely to be little dispute or confusion about the application of the test's first prong – whether a critical injury or death to any person has occurred. Similarly, in respect of the second prong, there is likely to be little confusion as to whether the injury has occurred at a place where a worker is carrying out his or her duties. In addition, in many workplaces, the fact that a worker is not in the immediate vicinity at the time of the injury is unlikely to make it difficult to determine whether the location is one in which a worker could reasonably be expected to be during the course of his or her duties. Nevertheless, determining whether the second prong applies could be challenging in some circumstances (eg, where the injury occurred in a publicly accessible location (eg, a park) that may be infrequently accessed or accessed on a limited basis by workers during the course of their duties). The court of appeal's decision fails to indicate how to determine the factors that make it reasonable to expect that a worker would access the location during the course of his or her work. This may well turn on factors such as the frequency with which workers access the location and the types of task that they typically carry out while at the location, but the criteria will need to be established over time.
The biggest challenge presented by the test is likely in the application of the third prong. The court failed to expand on the intended meaning of this prong in order to guide employers as to what circumstances would fall within or outside its scope. As such, employers have been left to determine how this element of the test should be applied when determining their obligations to report. While each case will turn on its own particular circumstances, one way in which employers or constructors may choose to approach the issue is to assess the "reasonable nexus" to the "realistic risk to worker safety at that workplace" as one where a fatal or critical injury has arisen from:
Those familiar with the act may recognise this language as that used to define the permissible grounds on which a worker may refuse work. The right to refuse work is related to the presence of a possible hazard associated with the work itself and provides an established means to assess whether a particular circumstance may fall within the third prong of the test provided by the court of appeal. However, as mentioned above, each situation will turn on its own particular facts; employers would be well advised to seek advice when determining whether to report an injury to a non-worker.
Establishing or amending policies and procedures containing guiding principles for reporting accidents to all 'persons' would assist supervisors and managers in assessing reporting requirements relating to the circumstances of the employer's workplace(s).
Although it was not directly referred to in this case, the court's decision on the reporting obligation under Section 51(1) would equally apply to the obligation to preserve the scene of the injury that exists under Section 51(2).
It is as yet unclear whether the Ministry of Labour will seek leave to appeal the decision to the Supreme Court of Canada or whether there is any intention to amend Section 51 of the act. For now, employers and constructors should consider the court of appeal's decision to be the governing law relating to notification and reporting of injuries occurring in Ontario workplaces. As such, it is advisable that employers and constructors review and, if necessary, revise their reporting policies and train workers and supervisors on how to respond.
Such reporting policies, strategies and procedures should include:
Employers operating in multiple jurisdictions should bear in mind that different standards apply in different provinces. For example, in Alberta and Nova Scotia all deaths that occur at a workplace must be reported, including those involving members of the public. However, insofar as critical injuries are concerned, those incurred only by workers are reportable in those provinces. Conversely, both Quebec and British Columbia require that employers report injuries to workers only. Thus, no one standard applies across the country. Further, jurisdictions such Nova Scotia, Newfoundland and Labrador have reporting obligations that are similarly worded to the obligation in Ontario. As such, although the Ontario Court of Appeal did not interpret the legislation, and its judgment is not binding in any other jurisdiction, it could prove influential.
Therefore, employers operating in multiple jurisdictions should carefully consult the applicable statute to determine the specific circumstances in which workplace injuries and events (eg, fires, explosions and collapses) are reportable. This variation and complexity make it important for employers and constructors to ensure that workers and frontline supervisors are given information and instruction on the legislated requirements relating to workplace accidents in order to ensure compliance with the applicable statutory regime.
For further information on this topic please contact Cheryl A Edwards, Jeremy Warning or Julie-Anne Cardinal 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).
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