Health and safety reporting dispute following resort guest’s drowning sparks debate over workplace boundaries
By Jeffrey R. Smith
Workplace health and safety is a big concern for employers for several reasons.
A safe workplace reduces the chances for employees getting injured, missing work and possibly going on workers’ compensation or modified duties. Employee morale and productivity will undoubtedly be better if employees feel confident they’re safe at work. And, on top of it all, governments are pretty strict when it comes to safety practices, through inspections and heavy financial penalties for health and safety violations — not to mention the risk of criminal charges to individuals through the Bill C-45 amendment to the Criminal Code.
But how much responsibility does an employer have for maintaining the health and safety of people around the workplace, whether employees or not? And what exactly counts as a workplace?
These questions came up a few years ago in the much discussed case of Blue Mountain Resorts Ltd. v. Bok, when the Blue Mountain Resort in Collingwood, Ont., was ordered by an Ontario labour inspector to report the drowning of a guest in its swimming pool as a workplace death.
The pool was unsupervised and no Blue Mountain employees were present, but the Ministry of Labour and later the Ontario Labour Relations Board determined that because workers sometimes performed maintenance on the pool, it qualified as a workplace. The province’s Occupational Health and Safety Act requires employers to report any critical injuries or deaths at a workplace.
Blue Mountain appealed and last month found relief with the Ontario Court of Appeal, which found the earlier decisions unreasonable and would lead to the “absurd conclusion” that any injuries or deaths anywhere would have to be reported to the Ministry of Labour, because employees could theoretically show up anywhere. To consider the death or injury of a non-employee in an area where no employees were working and usually didn’t work took the reporting requirement too far, said the appeal court.
The Court of Appeal’s decision may make sense to many, but obviously the labour inspector and the labour board saw it differently. It raises the question of, “What is a workplace?”
The Court of Appeal mentioned an example of an accident on a highway when police and emergency workers show up afterwards as a workplace, but asked is the highway a workplace otherwise if workers are just passing by? And if a location is a place where workers might occasionally perform work, such as maintenance on a resort’s swimming pool, is it a workplace accident if another worker is injured or killed while not performing their job?
The Blue Mountain case blurred the line defining what was a workplace, and though the Ontario Court of Appeal decision seems to clarify things somewhat, the fact the case went that far shows that line still may be a little blurred.
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected] or visit www.employmentlawtoday.com for more information.