In a somewhat surprising decision, the Ontario Divisional Court recently held that employers are obligated to report a non-worker’s critical injury or fatality to the Ministry of Labour, so long as it occurred in the “workplace”.  This obligation exists regardless of whether a worker was present at the time of the critical injury or fatality.

On December 24, 2007 a guest at Blue Mountain Resort’s (Blue Mountain) unsupervised swimming pool drowned.  Blue Mountain did not report the fatality to the Ministry of Labour, as it did not believe that under the Occupational Health and Safety Act (the OHSA) it was required to report an incident that did not involve a worker.

 Ministry of Labour Order

On March 27, 2008 a Ministry of Labour Health and Safety Inspector conducted a field visit to Blue Mountain, and ordered Blue Mountain to report the fatality, as it was captured under section 51(1) of the OHSA.  Section 51(1) states that an employer must report the death or critical injury of a person that occurs from any cause at a workplace.

Ontario Labour Relations Board Decision

Blue Mountain appealed the Order to the Ontario Labour Relations Board (the Board).  The issues before the Board were whether: (i) the word “person” in section 51(1) means “worker”; and (ii) the unsupervised swimming pool in which the guest drowned was a “workplace” within the meaning of the OHSA.

“Person” is not defined in the OHSA, and in order to determine whether it is synonymous with the definition of “worker”, the Board considered the legislative context and the purpose of the OHSA.  The Board concluded that the word “person” is to be construed in its ordinary meaning and is not synonymous with the word “worker”.

With respect to whether the guest drowned in an area that could be defined as a workplace, the Board found that Blue Mountain was a fixed workplace, in that there is a defined area encompassing a ski hill, buildings, parking lots, and a swimming pool from which Blue Mountain operates its business. Accordingly, the Board held that the area of the resort where the Blue Mountain employees perform their work functions is a “workplace” for the purposes of section 51(1) of the Act, and that the fact that an employee is not physically present within an area of that “workplace” at the time of the incident does not mean that that particular area is not part of the “workplace”.

Accordingly, the Board held that the drowning of a guest in the Blue Mountain swimming pool triggered the OHSA reporting obligation, as it involved a person who suffered a fatality at a workplace.

Divisional Court Decision

Blue Mountain appealed the Board’s decision to the Divisional Court (the Court), largely on the basis that the Board’s construction of the word “workplace” led to an absurd result, as it included all 750 acres of the resort, which were both a place of work and a recreational facility.  Blue Mountain argued for an interpretation of “workplace” that required the “physical presence of a worker at a place where a worker works at the time at which an occurrence with a guest or other person takes place.”

The appeal was dismissed.  While the Court did not accept Blue Mountain’s position regarding the construction of “workplace”, as it was not supported by the language or purpose of the OHSA, it did find the Board’s designation of  the entire Blue Mountain Resort as a “workplace” unreasonable, in that it went significantly farther than necessary for the purposes of disposing of the appeal.   The Court held that the guest drowned in the resort swimming pool, and that it was common ground that the swimming pool was a place where one or more workers work. Accordingly, the absence of a worker at the swimming pool premises at the time of the occurrence did not diminish the fact that it was a workplace and the Court determined that the conclusion reached by the Board in this regard was not unreasonable.

The Court went on to state that while the Board’s conclusion that all 750 acres of the Blue Mountain Resort was a workplace was unreasonable, what constituted a workplace would be dependent upon the facts of each case.  As workers and guests are often vulnerable to the same dangers, physical hazards with the potential to harm workers and non-workers should be subject to reporting and oversight.

Our Views

This decision expands the scope of what employers had previously understood to be their reporting requirements under the OHSA.

In order to determine whether an employer will be required to report an incident involving a non-worker, the employer will need to consider whether a worker could have been potentially affected by the hazard that caused the incident. If the answer is “yes”, the employer is likely under an obligation to report the incident to the Ministry of Labour.