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Feb 8, 2013

Ontario ski-resort wins appeal: Guest drowning not a workplace accident

Decision reverses labour board and divisional court decisions over 2007 accident
    
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A 2007 drowning at an Ontario ski-resort cannot be considered a workplace accident, the Ontario Court of Appeal has ruled.

The ruling reverses decisions by the Ontario Labour Relations Board (OLRB) and Divisional Court, which found the accident fell under the Occupational Health and Safety Act as a death incurred by a person at a workplace.

“(It) 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,” the Appeal Court ruled. “This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”

The drowning took place at an unattended pool at a Blue Mountain Resort in Collingwood, Ont. in December 2007. The Labour Ministry said the accident was reportable, but the resort argued the pool did not constitute a workplace and no workers were present when the drowning took place.

Employees must have been on-site at the pool area to check in and maintain the facility, the OLRB ruled in its decision. Divisional Court upheld that decision.

The Appeal Court decided using that logic would lead to unreasonable results.

"This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported," the judge ruled. "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."

“There (must) 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," he said. "There is no such nexus here.”

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