Guest drowning not a workplace accident

Ontario decision clarifies rules for employers

When a guest drowned in a pool at Blue Mountain Resort near Collingwood, Ont., in 2007, the resort didn’t report the incident to the Ministry of Labour.

What happened next was perplexing for employers who had to decipher when an injury to a non-worker needed to be reported to the ministry. The Ontario Labour Relations Board found the accident fell under the Occupational Health and Safety Act as a death incurred by a person at a workplace. A Divisional Court agreed with the ministry.

Now the Court of Appeal has overturned the decision.

The language of the statute that outlines when an incident should be reported to the Ministry of Labour is very open ended, said Robert Little, a partner at Hicks Morley in Toronto.

“It talks about where a person is killed or critically injured from any cause in a workplace and so the wording on its face was very broad and created a lot of confusion — because of course it refers to a person — in the employer community about when the actual notification was required.”

If a patient dies of old age in a hospital, a literal reading of the section would require an employer to notify the ministry, said Little.

Employers who historically only reported employee injuries were grabbing the section, reading it and seeing how open ended it was and wondering what to do, he said.

“So the initial Blue Mountain decision of the labour board caused a lot of anxiety because of its breadth.”

The appeal court’s decision means there will be some analysis required about whether or not something that has injured a guest poses a risk to workers, said Little.

In its decision, the Court of Appeal gave a three-part test to determine whether an injury is reportable (see sidebar).

The third part is really critical, said Adrian Miedema, a partner at Fraser Milner Casgrain in Toronto.

“It has to be something that happens to a non-worker that could have happened to a worker,” he said.

If somebody fell at a workplace because there was no guardrail in place, but it wasn’t a worker, that would be an unsafe condition for a worker as well, so it would need to be reported, said Karen Fields a partner at Crawford, Chondon and Partners in Brampton, Ont.

“They will have to do a little bit more of an analysis, it won’t simply be do I have a fatality, then I fill it out or do I have the definition of a critical injury then I fill it out,” she said. “They’ll have to look to see what the reasons are.”

Now it’s up to employers to be aware of the decision and apply it to their workplace, said Fields.

“I think the court was nice and clear about the steps that you have to take a look at and I think that’s helpful,” she said. “Now whether every employer will read that case and understand that those are the steps that they need to take a look at, that will be a question.”

Other possible legal ramifications

Another issue that comes out of the court’s decision is the definition a workplace. The Court of Appeal defined it as a place where a worker is carrying out employment duties at the time of the incident or where a worker may be reasonably expected to be carrying out employment duties, said Miedema.

This definition is not just important for reporting. It will also give employers a general understanding of where they’ve got a safety responsibility in other situations, he said.

For example, how far does an employer’s obligation extend when protecting against workplace violence?

“I think that definition of workplace is going to be helpful and employers are now going to have to look at it and say ‘Where might our workers going to be reasonably expected to carry out our duties even if they aren’t there right now and our obligations are going to extend to that.’”

The question of a nexus between the hazard to a person and the hazard to a worker could become a possible defense for employers, as well. If the ministry finds out about an incident in a workplace and decides to prosecute, the employers might be able to raise the reasonable nexus issue as a sort of defense, said Miedema.

“I think that nexus issue actually raises a potential argument for employers if they’re charged in relation to accidents to non-workers.”

As for the issue at hand, Fields points out the Blue Mountain saga is not necessarily over.

“The Ministry of Labour could appeal this or seek leave to appeal to the Supreme Court so we’ll be watching to see if that happens and if not the Court of Appeal will be the final word on that,” she said.

Reporting guidelines

3-part test

In its decision, the Ontario Court of Appeal provided the following three-part test to aid in determining whether an injury is reportable.
•Was the worker or non-worker critically injured or killed?
•Did the death or injury happen at a place where a worker was performing her duties when the injury or death occured or a place where the worker could have been reasonably expected to carry out work duties?
•Is there a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to workplace safety?

Melissa Mancini is a Halifax-based freelance writer.

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