The Court of Appeal for Ontario has released its decision in the Blue Mountain Resorts Limited case relating to the death of a guest at the resort in 2007. The central issue in the case was whether or not Blue Mountain Resorts was required to report a guest fatality to the Ministry of Labour pursuant to section 51(1) of the Occupational Health and Safety Act (OHSA). The case raises important issues of the interplay between occupational health and safety and public health and safety for workplaces that involve employees serving the public.

An employee found the deceased guest and used a defibrillator in an attempt to revive him. Blue Mountain Resorts assumed that the guest had suffered a heart attack. An autopsy later determined the cause of death was drowning in the swimming pool.

Blue Mountain Resorts owns and operates an all-season resort and recreational facility on a 750-acre property near Collingwood, Ontario. The resort offers 36 downhill ski runs and other recreational facilities, including mountain biking trails, a golf course and indoor swimming pools.

The swimming pool was not supervised by any employee of Blue Mountain Resorts at the time of the fatality. Further, no employees were working in the vicinity of the swimming pool at the time of the drowning.

Blue Mountain Resorts employs approximately 1,750 staff, and at the peak of its ski season, may accommodate as many as 16,000 visitors at once.

Ministry of Labour Inspector Richard Den Bok issued an Order pursuant to section 51(1) of the OHSA in relation to the drowning death. This provision states:

“Where a person is killed or critically injured from any cause at the workplace, the Constructor, if any, and the employer, shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director, a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.”

Blue Mountain Resorts did not notify the Ministry of Labour of the drowning death and did not submit a written report to the ministry within 48 hours. When Inspector Den Bok directed the company to comply with section 51(1), Blue Mountain Resorts appealed the Order pursuant to section 61 of the OHSA to the Ontario Labour Relations Board (OLRB).

The OLRB heard evidence that there are approximately 1.5 skiing related incidents for every 1,000 visitors to the resort during the ski season. This ratio could translate into as many as 38 to 40 reports of “critical injuries” (as defined by the OHSA and its regulations) per weekend.

Inspector Den Bok gave evidence at the OLRB hearing that, in most cases, the inspector on call would provide a release of the accident scene if critical injuries suffered by guests of Blue Mountain Resorts were called in.

The OLRB also heard evidence that the Ministry of Labour has been aware of the resort for more than 27 years, and had never previously issued an Order with respect to a critical injury or fatality of a guest. The ministry argued that its shift in policy was due to a number of resorts appearing to engage in high-risk activity and an increased number of critical injuries to guests in recent years.

The OLRB upheld Inspector Den Bok’s Order and the company was unsuccessful in its application to the Divisional Court for judicial review. But Blue Mountain Resorts was then successful in its application for leave to appeal to the Court of Appeal.

The Court of Appeal made several analytical findings before rendering its final judgment. First, the court noted that simply because a generous approach should be given to interpreting public welfare legislation such as the OHSA, this does not permit “a limitless interpretation of their provisions.” It said that such an interpretive approach may result in the reach of the legislation going far beyond what was intended by the legislature.

Second, the Court of Appeal agreed with the OLRB that workers may be subject to the same workplace hazards that may cause critical injuries or death to guests. But it said that concern must be anchored in a hazard or risk that has potential harm to workers, and cannot be a vague or general hazard or risk.

Third, the Court of Appeal held that the OLRB’s decision had the potential to reach far beyond the purpose of the OHSA and result in unreasonable or unwieldy ramifications.

Further, the Court of Appeal held that section 51 (1) of the OHSA must be read in light of the subsection which follows it that deals with preserving the incident scene until there has been an investigation by a Ministry of Labour Inspector. This, said the court, had not been part of the review and analysis of the OLRB. As a result, the OLRB ignored the possibility of shutting down part or all of the resort for the purpose of a workplace and worker safety investigation. The Ministry of Labour counsel on the file conceded to the Court of Appeal, as recorded in the Reasons for Judgment, that, “he could not think of any location in the province of Ontario, except perhaps an abandoned woodlot, that would not be classified as a workplace.”

The Court of Appeal held that the consequences of the OLRB and Divisional Court’s decision were incompatible with the objectives of the OHSA and extended the scope of intrusive Ministry of Labour powers beyond what could reasonably be required to promote and preserve workplace safety in Ontario.

In conclusion, the Court of Appeal held that the interpretation of section 51(1) of the OHSA by the Ministry of Labour Inspector, the OLRB and the Divisional Court was unreasonable. The appeal was allowed and the court said that the ministry must only be notified of a death or critical injury at a workplace (and a report provided) where there is some “reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to workers’ safety at the workplace.” Justice Blair, writing for the three member panel of the Court of Appeal, said:

“The interpretation I adopt conforms to the purpose and objective of the Act and is consistent with the provisions of the Act as read as a whole . . .”

The implications for employers are broad and complex. First, a critical injury or fatality of a non-worker does not always need to be reported to the Ministry of Labour. There must be, as the court indicated, a nexus between the hazard giving rise to the critical injury or death and a realistic risk to workers’ safety at the workplace. Further, it is not always clear, as a result of this decision, who will make the judgment regarding this nexus. Presumably it is, at first instance, the employer. A Ministry of Labour Inspector may still take a different view and issue an Order — or even prosecute the employer for failure to report.

Do employers require legal advice to determine if there is a nexus? In our view, legal advice is always recommended when determining whether or not to report a workplace critical injury or fatality to the Ministry of Labour — involving either a worker or a member of the public. The Blue Mountain Resorts case reinforces this point. Employers who fail to be proactive in getting legal advice risk making a wrong interpretation, which may put a corporate employer at risk of prosecution for failing to report a critical injury or fatality.

It will be interesting to see if the Ministry of Labour field inspectors change their procedures as a result of this case. Certainly the Court of Appeal has supported a more contextual approach to section 51 of the OHSA. Other provisions of the OHSA may also have broader implications and ramifications for other interpretations, including cases currently before the courts where charges are being prosecuted under the OHSA.