Workplace Wire

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When a Pool is just a Pool: ONCA Overturns Blue Mountain

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“Sometimes a swimming pool is just a swimming pool.”

So says the Ontario Court of Appeal in handing down its highly anticipated decision in Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board), which overturns the decisions of the Ontario Divisional Court and the Ontario Labour Relations Board (“OLRB”). The Court of Appeal found that Ontario’s Occupational Health and Safety Act (“OHSA“) does not require employers to report every critical injury or death to all “persons” (as opposed to “workers”) at a workplace. Rather, the OHSA only requires employers to report critical injuries or deaths that occur in a workplace (whether to persons or workers) which have a nexus to a realistic risk to worker safety.

As is explained in our analysis of the decision available for download below, the case involved the drowning death of a guest in the Blue Mountain Resort’s unsupervised swimming pool on Christmas Eve, 2007. No workers were present at the time of the incident, and so Blue Mountain chose not to report the fatality to the Ministry of Labour, reasoning that the incident did not occur in a “workplace” and did not involve a worker. In March of the following year, 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 Resort appealed the Inspector’s order to the OLRB. The OLRB upheld it, ruling that the OHSA 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 as reasonable.

On appeal to the Court of Appeal for Ontario, Blair J.A., held:

The interpretations (the Divisional Court and OLRB) gave to s. 51(1) of the OHSA 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 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.

The Court went on to note that “a proper interpretation of the Act requires that there be some reasonable nexus between the hazard giving rise to the death…and a realistic risk to worker safety at that site.” This conclusion is in keeping with the arguments advanced by Blue Mountain Resort, and the two intervenors in the case – Conservation Ontario and the Tourism Industry Association of Ontario – in the appeal hearing before the court last fall.

The decision should prove to be welcome news for employers whose workplaces welcome or engage the general public, as it limits an employer’s reporting and notification obligations to situations where:

  1. a worker or non-worker (“any person”) is killed or critically injured;
  2. the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and
  3. there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).

Click here to download our in-depth analysis of the Court of Appeal’s decision and how it will affect employers:e-news_ohs-management-update_2013-02-11_EN.pdf.

Please contact any of the members of our Ontario OHS practice group for more information: Cheryl Edwards at [email protected], Jeremy Warning at [email protected], Kevin MacNeill at [email protected], Christina Hall at [email protected], Shane Todd at [email protected], Samantha Seabrook at [email protected] or Julie-Anne Cardinal at [email protected].

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