On Christmas Eve 2007, a guest drowned in an unsupervised swimming pool at Blue Mountain Ski Resort in Collingwood, Ont.
The resort did not report the incident to Ontario’s Ministry of Labour since an employee wasn’t injured or killed on the job. That was wrong, according to the Ontario Divisional Court, which recently agreed with both the Ontario Labour Relations Board and a ministry inspector that the obligation to report the death was not unreasonable.
“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,” said the court.
The obligation to report a death or injury is driven by result rather than cause, it said, so “any event resulting in death or critical injury, even if occurring in circumstances having no potential nexus with worker safety, is reportable so long as they occur in a workplace.”
An employer is required to notify the ministry if a non-worker is critically injured or killed at a workplace if the hazard that caused the incident also presents a risk to the health and safety of workers at that workplace, said Matt Blajer, spokesperson for the Ontario Ministry of Labour.
“This is a reasonable expectation and should not be burdensome for employers.”
But this legislation has always been between the employer and employees, not people outside that relationship, said Ian Johnstone, a partner at law firm Johnstone, Daniels & Cowling in Toronto.
“That’s what’s new and unusual about this, the way it’s been interpreted... In my opinion, it broadens the scope of what the Ministry of Labour inspectors are to be doing,” he said. “It does have a profound effect on the way employers have to view their workplace now and the reporting obligations are increased significantly, depending upon what sector you’re in.”
This issue has come up before but never really like this, said Cheryl Edwards, a partner at law firm Heenan Blaikie in Toronto.
“It’s just been an issue that’s flown under the radar for all of this time,” she said. “(Queries have) been dealt with, in our experience, fairly informally over the years and that’s how we’re continuing to suggest that businesses deal with it, by calling and asking the question.”
While the death of a non-worker is not common, it has happened, she said, citing the death of a young girl in Calgary in 2009 when a board fell from a construction site.
“I can certainly see there’s a place for making sure that (the ministry is) informed of those sorts of things,” she said. “On the other hand, some people might say that’s still not within the appropriate reach of OHS legislation.”
There are several issues to the case. For one, Ontario’s Occupational Health and Safety Act (OHSA) states an inspector should be notified if a “person,” not just a worker, is killed or critically injured from any cause at a workplace. And workplace is defined as “any land, premises, location or thing at, upon, in or near which a worker works.”
Blue Mountain had contended a workplace requires the presence of a worker at the time of an incident.
But there were “significant logical flaws” to this argument, said the court.
“The focus is entirely temporal and does not take into account the causative nexus between prevailing conditions and the resulting harm.”
“It is common ground that the swimming pool is a place where one or more workers work,” said the court. “For these reasons, 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.”
However, the court said it did not entirely agree with the board’s conclusion that all of Blue Mountain’s property be considered.
“Such a finding conflates, in our view, the proprietary interests of the applicant… and it goes significantly farther than was necessary for purposes of disposing of the appeal,” said the court. “Each case must be determined on its own facts.”
But it’s hard to understand how the 750 acres doesn’t fall within the workplace, said Johnstone.
“If workers go there, how can it not be a workplace? It leaves me with the question: Then what does workplace actually mean? That part, to me, still requires some fleshing out.”
An employer that owns a municipal road, for example, could be unclear about its obligations, said Edwards.
“It leaves you hanging, wondering, ‘Well then, how does an employer then deal with that, how do they decide which inches or acres or which part of the location is the workplace?’” she said. “It does introduce that element of potentially onerous obligations into this whole area.”
Also of concern to Blue Mountain is the obligation, as part of reporting, to preserve the scene of an injury or death until a ministry inspection, which could cause a serious disruption and possibly cause perils to others.
Every time an emergency services person attends a critical injury — such as unconsciousness, substantial loss of blood or a fractured arm or leg — are they required to block off a portion of the roadway? asks Johnstone.
“All situations are unique and it is impossible to make a blanket statement regarding requirements relating to the preservation of an accident site,” said Blajer.
It often takes the ministry quite some times to arrive at the scene of an incident, said Edwards. That can be a problem if it’s a ski hill or school, along with being emotionally upsetting for colleagues.
“It does mean all productive work has to stop in that area and efforts have to be made to preserve it,” she said. “It relates to the time it takes for the Ministry of Labour to come and the nonsensical nature of this — 99.9 per cent of the time, it’s not going to involve something that could affect a worker.”
When first contacted, the Ministry of Labour said it was “considering how best to inform and guide employers regarding their duty to report critical injuries and fatalities to non-workers.”
However, now that Blue Mountain has filed an application for leave to appeal, the ministry is “awaiting the resolution of the appeal before making any decisions regarding additional guidance,” said Blajer.
But the ministry may have to provide guidance because it could be “absolutely inundated” with calls and reports, said Johnstone.
The ministry will probably deal with it as it always has, by making a decision for each case, said Edwards.
“Dealing with it on an ad hoc basis, although it’s unfortunate, is probably the way that makes the most sense,” she said. “This brought to a head something that just has not been dealt with previously, properly, and they should give specific guidelines to employers in the province of Ontario so they know how to deal with it.”
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