Under the Ontario Occupational Health and Safety Act (“OHSA”), employers are required to immediately report to the Ministry of Labour (“Ministry”) all incidents that involve critical injuries or fatalities “from any cause at a workplace”. A written report must also be filed within forty-eight hours after the incident occurs, and the scene of the incident must not be disturbed or altered until an inspector has granted permission to do so.
In Blue Mountain Resorts Limited v. Den Bok et al.,2013 ONCA 75, the Ontario Court of Appeal clarified when an incident will be considered to have occurred “from any cause at a workplace”. This decision is especially helpful to employers whose employees work amongst the public or off company property.
Background
On Christmas Eve 2007, a guest at Blue Mountain Resort died while swimming in an unattended indoor pool at the ski resort near Collingwood, Ontario. Blue Mountain did not report the incident to the Ministry. In 2008, an inspector learned about the incident, and ordered Blue Mountain to report the accident immediately.
Blue Mountain was troubled by the implications of the inspector’s order. At a ski resort, serious injuries occur frequently, and the inspector’s interpretation of OHSA reporting requirements could potentially require Blue Mountain to report up to 39 incidents on an average winter weekend. Blue Mountain would often be required to close its facilities—such as ski runs—for days at a time.
Blue Mountain argued that no obligation to report existed because a worker was not present at the time of the incident, and because the swimming pool was not a “workplace” under the OHSA.
The Test
The Ontario Court of Appeal found that the reporting obligations of an employer under the OHSA are only engaged where:
- A worker or non-worker (i.e. “any person”) is killed or critically injured;
- The death or critical injury occurs at a place where either a worker is carrying out his or her employment duties at the time of the incident or a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and
- There is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).
The Decision
Under the circumstances, the Ontario Court of Appeal found that the unfortunate events that occurred on Christmas Eve 2007 did not occur in a “workplace”. While the guest was a non-worker killed at a place where a worker might reasonably be expected to be carrying out his or her duties, there was no evidence that the guest’s death in the swimming pool was connected to a hazard that could affect the safety of a worker. Rather, the guest had either died from a heart attack or drowned while swimming.
Implications
The Blue Mountain decision has practical implications for employers, especially employers whose employees work amongst the public or off company property. Employers should review their current incident reporting policies and procedures regarding critical injury or fatalities in the workplace to ensure that two key factors are assessed when determining whether their obligation to report to the Ministry and preserve the scene has been triggered:
- Whether the incident occurred at a “workplace” for the purposes of the OHSA (i.e. at a place where a worker was carrying out his or her employment duties at the time of the incident or a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work); and
- Whether there is a plausible link between the cause of the incident and a real risk to worker safety.
For further information about this case, or about OHSA reporting requirements in general, please contact a member of our Labour, Employment and Employment Benefits Group.
Many thanks to Bonnie Tsui for her assistance in drafting this blog.
