Court adopts broad definition of workplaces, increasing reporting obligation for injuries
In a decision that will have far reaching implications for the Ontario resort and tourism industry, the Divisional Court of the Ontario Superior Court of Justice has upheld an Ontario Labour Relations Board (OLRB) decision that injuries to guests must be reported to the Ministry of Labour (MOL). Under Ontario’s Occupational Health and Safety Act (OHSA), critical and fatal injuries must be reported to the provincial health and safety regulator, the Ministry of Labour. This provision had been normally understood to require employers to report injuries to employees or workers. However, the May 18, 2011, decision of Justice Wailan Low supports the OLRB’s ruling that this obligation also extends to guests at resorts or other tourism facilities.
Resort guest drowning in pool a workplace fatality: Inspector
The case arose when an MOL inspector, Richard Den Bok, issued orders to Blue Mountain Resorts, a ski and leisure resort company in the Collingwood, Ont., area, after a guest drowned in an unsupervised swimming pool at one of its resorts. The inspector ordered Blue Mountain to comply with a section of the OHSA — s. 51(2) — requiring reporting when a “person is killed or critically injured from any cause at a workplace.” The guest was clearly not a worker governed by the OHSA. However, the legal issue before the OLRB and the court was whether or not the reporting obligation applied to a resort where it was a guest, and not a worker, that was critically or fatally injured.
The two issues that were argued by Blue Mountain before the court were:
•Does the use of the word “person” in the OHSA mean just a “worker” or does it apply to a guest at a resort?
•Does an unsupervised swimming pool at a resort constitute a “workplace” for the purposes of the reporting obligations of employers under the OHSA?
The first significant part of the ruling by the court was that it gave the OLRB significant deference as “an expert tribunal exercising its powers of division in the administration of the statute within its area of responsibility.” This is an interesting proposition, since the OLRB is known as an expert in adjudicating labour relation decisions but not necessarily occupational health and safety matters.
The court also said, in a rather narrow, literal interpretation of s. 51(2) that “on a plain reading of the subsection, any event resulting in death or critical injury, even if occurring in circumstances having no potential nexus with workers' safety, is reportable so long as they occur at a workplace.” One troubling aspect of this statement is that the OHSA is legislation exclusively directed at employers — and other workplace stakeholders — for the health and safety of employees and workers in Ontario. The OHSA is not a public safety statute. It is not intended to broadly apply to the safety of the public, or more specifically guests at tourist resorts in Ontario.
The court acknowledged in its decision that Blue Mountain was concerned with the potential for serious disruption to its operations if the term “person” was to apply to every guest at the resort and “workplace” applied to every area of the resort where a guest might venture, even if it was not at the same time or place that an employee was performing work. Further, Blue Mountain argued that the need to preserve the workplace if there was a critical or fatal injury was nearly impossible in such a large ski and summer resort. Ongoing services to guests would be significantly disrupted if an incident occurred and an accident scene had to be preserved for an MOL inspector to conduct an investigation.
The court went on to state, without referring to any supporting evidence, that “workers and guests are vulnerable to the same hazards.” This statement clearly appears to have expanded the purpose and role of the OHSA well beyond worker safety, to public safety. It went on to further justify the OLRB's decision when it said that even though a worker was not present at the time of the drowning, at other occasions, workers may attend at the swimming pool to perform work. This is really a separate issue but the court treated them the same. The court's logic, however, means that any property, including resorts and tourist attractions in Ontario, will all be considered workplaces if, at any time, workers may be in the vicinity where a member of the public is injured or killed.
More reporting for employers
The court rejected the judicial review application of Blue Mountain, upheld the decision of the OLRB and dismissed the case. The direct result of this decision is that all resorts and tourism operations, and any other employers that have interaction with the public, must now report any and all critical or fatal injuries that occur in the workplace to the MOL. Employers must also preserve the incident scene and perform no work in that area — effectively shut down the operation until the MOL attends, investigates and releases the scene. This ruling, presumably, would also apply to public highways, shopping malls, parks and conservation areas throughout Ontario where workers will, from time to time, perform work to which the public has access. The court’s decision necessarily requires a much broader approach by all private and public employers in Ontario of their obligations to report critical and fatal injuries to the MOL.
The unintended result of this case will likely be a flood of reports to MOL inspectors across Ontario now that the law has been clarified by the Divisional Court. All Ontario employers, both private and public, should look carefully at their reporting policies, training obligations and OHS management systems to ensure all relevant personnel understand the reporting obligations. They should also prepare to deal with MOL inspectors who have a mandate to investigate, fight orders and prosecute employers for both worker and non-worker incidents at workplaces across the province. See Blue Mountain Resorts Ltd. v. Bok, 2011 CarswellOnt 3468 (Ont. Div. Ct.).
