Critical Injuries of Non-Workers at Your Workplace

The recent Divisional Court decision, Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board) upheld the decision of the Ontario Labour Relation Board’s (the “OLRB”) finding, that employers have an obligation to report all deaths or critical injuries to non-workers which happen at the workplace.

The facts are that an Order was made by a Ministry of Labour (“MOL”) Inspector against Blue Mountain Resorts Limited related to an occurrence at Blue Mountain in which a guest of the resort drowned in an unsupervised swimming pool. The Order was made pursuant to section 51(1) of the Occupational Health and Safety Act, 1990, R.S.O. c. O.1., as amended (the “Act”), which provides as follows:

51.  (1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and 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 MOL Inspector concluded that a “person” included a guest and that a “workplace included an unsupervised swimming pool. Blue Mountain did not notify a MOL Inspector of the occurrence pursuant to s. 51(1) of the Act and did not send to the Director a written report of the circumstances of the occurrence.

The word “person” is not defined in the Act. The word “workplace” is defined in s. 1 of the Act as follows:

“workplace” means any land, premises, location o thing at, upon in or near which a worker works.

The Board concluded that the word “person” in s. 51(1) of the Act is to be construed in its ordinary meaning and not as synonymous with the word “worker”.

The focus of the judicial review was the meaning of the word “workplace” and the manner which it is to be construed in s. 1 and s. 51(1) of the Act. Blue Mountain argued the practical application of the reporting requirement flowing from the interpretation of the meaning of “workplace” to include all 750 acres of the entire resort.

The Court concluded that workers and guests are vulnerable to the same hazards. The purposes and intents of the legislation would be undermined if a physical hazard with potential to harm workers and non-workers alike was not subject to reporting and oversight. That said the Court was not persuaded that the whole of Blue Mountain Resort’s 750 acres is a workplace. Each case must be determined on its own facts.

The Court went on to conclude that in the case of a guest drowning in the resort unsupervised swimming pool that it is common ground that the swimming pool is a place where one or more workers work. As such, the absence of a worker at the swimming pool premises at the time of the occurrence does not diminish the fact that it is a workplace and therefore the conclusion of the OLRB was not unreasonable.

What this decision means going forward for employers is that the employer must notify the Ministry of Labour if a person, including a non-worker, is killed or critically injured at the workplace and provide a written report of the circumstances of the occurrence to the Director. It will then be up to the Ministry of Labour Inspector to determine, if where the death or injury occurred constituted a workplace and whether the death or injury was the result of a workplace hazard pursuant to the Act.

If you would like to discuss anything in regard to employer’s obligations pursuant to the Act, please contact us or directly with Chantel Goldsmith.

The foregoing should not be considered to be legal advice and should not be relied upon as such. Please consult a lawyer to get advice and an opinion on your unique circumstances.