OHSA Injury Reporting: Ontario Court of Appeal hears Blue Mountain Appeal
By Dean
The full scope of injury reporting requirements under Ontario’s Occupational Health and Safety Act (“OHSA“) is now one step closer to being clarified.
In our May 2011 Occupational Health and Safety and Worker’s Compensation Newsletter, we reviewed and commented on the Ontario Divisional Courts’ ruling in Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board). Today, the Ontario Court of Appeal heard oral argument in the case, a decision that could have significant repercussions on when employers and constructors must report injuries to the Ministry of Labour.
On Christmas Eve, 2007, a guest of the Blue Mountain Resort drowned in a swimming pool. No workers were present at the time of the incident. Accordingly, Blue Mountain chose not to report the fatality to the Ministry of Labour on the basis that the incident did not occur in a workplace and did not involve a worker. Several months later, a Ministry of Labour Inspector on a routine visit to the resort learned of the fatality and issued an order to Blue Mountain citing it for failing to report the fatality. The Ontario Labour Relations Board (“OLRB”) later upheld the order, ruling that the Occupational Health and Safety Act requires that all critical injuries and fatalities to any “person” in a “workplace” be reported to the Ministry. On judicial review, the Ontario Divisional Court upheld the OLRB’s decision.
Five parties participated in the appeal: Blue Mountain Resort, the Ontario Ministry of Labour, the OLRB, and intervenors Conservation Ontario and the Tourism Industry Association of Ontario (“Tourism Ontario”). The Resort, Conservation Ontario and Tourism Ontario asserted that the OLRB’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). They all submitted that a nexus between any given “accident” causing a critical or fatal injury, and the act of working, should be required in order for reporting requirements to be engaged. In response, the Ministry of Labour called on the Court of Appeal to apply a plain and ordinary reading to the provision at issue, thereby sustaining the OLRB’s decision in the case. In the Ministry of Labour’s view, all accidents causing fatal or critical injuries in Ontario workplaces ought to be reported. It argued that it is the Ministry’s role – as regulator – to determine if any given incident is a workplace accident for purposes of the OHSA that ought to be investigated.
The Court of Appeal reserved its decision. The Court noted that it would release its final decision in case as soon as possible. Stay tuned to Workplace Wire for news of the decision when it is released.