Employers may now need to report all serious accidents that take place on their premises – even if no worker is involved or harmed.
Workplace health and safety laws have long been in force in all Canadian provinces to protect workers from hazardous situations and environments. These laws require employers to take measures to protect their employees from injury and to report injuries or deaths. Until recently, it was commonly understood that employers were not required to report incidents in which no worker was involved.
In a recent decision involving the Blue Mountain ski resort, a panel of the Ontario Divisional Court agreed with the Ontario Labour Relations Board (OLRB) that an employer can be sanctioned for failing to report an accident even when the incident involved only members of the public. Blue Mountain had been cited for failing to report the drowning of a guest of its resort in an unattended pool. In a strict reading of the Ontario Occupational Health and Safety Act, the OLRB determined that the Act applied to the death of any person not just workers. Despite the context of the Act, the word person could include customers, guests and other members of the public. The injury could fall within the scope of the Act so long as it occurred in a workplace.
Blue Mountain tried to have the OLRB's decision overruled by the Divisional Court, arguing that the OLRB's interpretation would create an excessive burden on employers and go beyond the purpose of the legislation: protecting employees at work. Part of the difficulty for Blue Mountain was the finding of the OLRB that the entirety of its 750 acre property constituted a 'workplace', which would encompass the activities of all customers of the ski hill and the many fractures and breaks that commonly result from that activity.
In Ontario, the Occupational Health and Safety Act requires an employer to report critical injuries and deaths that occur in the workplace. A workplace is "any land, premises, location or thing at, upon, in or near which a worker works". Other provinces define workplace or work site as some variation of "any place where a worker is or is likely to be engaged in an occupation". In Blue Mountain, the Divisional Court agreed with the OLRB that the pool was a workplace within the statute, but left open for future cases the question of whether an employer's entire property or other large area open to the public will be considered a workplace.
Not all occupational health and safety legislation in Canada imposes the same responsibilities on employers. Some provinces, such as Alberta and Nova Scotia, have statutes that, like Ontario's, are worded broadly enough to impose duties on employers when non-workers suffer injury. Others, such as PEI, limit an employer's responsibilities in the face of an accident to those instances where a worker is affected.
The Future in Canada
Looking forward, given the recent judicial trend to extend rights in labour and related legislation, this broad and liberal interpretation of occupational health and safety legislation may continue. If so, employers would be wise to review their health and safety procedures, and to take steps now to comply with the expanding scope of such legislation, in Ontario and other provinces.