Court of Appeal to Rule on Requirement to Report Non-Worker Deaths and Injuries under Ontario OHSA
By Cheryl A. Edwards
On October 4, 2011, the Court of Appeal for Ontario granted leave to appeal to Blue Mountain Resorts Ltd. in its bid to overturn a recent OHS decision issued by the Divisional Court.
The Divisional Court had upheld a conclusion by the Ontario Labour Relations Board that Blue Mountain Resorts was required to report the drowning of a guest at an unsupervised swimming pool to a Ministry of Labour inspector pursuant to section 51 of the Ontario Occupational Health and Safety Act (“OHSA”).
That such a notification was required for this incident is notable because it arose in a context in which no worker was involved. The Court confirmed an expectation that critical and fatal events to all “persons” at Ontario workplaces be reported. As we described in our earlier post, this decision potentially establishes a very broad and onerous reporting obligation for Ontario employers. It also requires the preservation of the scene of the incident for Ministry of Labour inspectors. Detailed analysis of the Divisional Court and OLRB decisions was presented in a recent OHS & Workers’ Compensation Management Update.
In its motion before the Court of Appeal, Blue Mountain Resorts argued that the OLRB’s broad interpretation of the OHSA reporting provision leads to “an absurd result.” It argued that the trigger for the reporting requirement could not be so broad as to include fatalities and critical injuries of customers using its recreational facilities. Furthermore, it cited the potential for serious disruption to the operations of Ontario businesses if the reporting requirements were broadly interpreted to include non-workers. The disruptions would notably include the requirement to preserve the scene for Ministry of Labour inspectors.
The Ministry of Labour unsuccessfully argued before the Court of Appeal that the lower court decision should not be reviewed because the Divisional Court properly interpreted the clear meaning of the terms in the section 51 reporting provisions of the OHSA, specifically that the term “workplace” had been properly interpreted to include the swimming pool.
The Court of Appeal will hear the matter on a date yet to be announced. Because of the onerous obligations imposed on employers as a result of the lower court decision, guidance from the Court of Appeal on the interpretation of the reporting obligation will be very helpful.
Prepared with assistance from Konrad Pola, student-at-law.
The implications are quite serious in that when a person suffers a critical injury the MOL will investigate the situation to determine if the employer has a safe workplace. This has some serious implication if the MOL determines that a safe workplace does not exist. For example there is a reported statistic from 2004-2005 that 23 children visit an ER daily. Over half of these cases are due to fractures/critical injuries which are now required to be reported.
I find this all very interesting that the debate continues when clearly the OHSA defines both a “Worker” and a “Workplace” yet sec 51 usues the word “person” which is not defined.
Trace, the legislation in Ontario has contained this provision about reporting to “persons” for many years. It has gone largely unnoticed. This decision provides an expansive interpretation of the provision, which has many employers and construcors concerned about how far to go when reporting. However we don’t see the legislation being expanded further in this direction, to require reporting of all matters. We will be assisting an employers’ organizqtion in making submissions to the Ontario government on potential changes to the legislation, or in the alternative, a reasonable guideline for reporting incidents to non- workers,. We would be happy to have your input on this, and the input of others on this.
Would the logistical extension of this decision be ALL injuries of “persons” within the workplace regardless of severity will have to be reported? Is this where we’re heading?
I have been waiting for this. I am convinced the Ontario Ministry of Labour MoL) is out of control and is in need of a reality check. Let us hope the review is a good one and places the MoL back into its role as protector of “workers” and remove this attitude they have as being all things to all people.