Occupational Health and Safety Officer - Reporting requirements; Judicial review - Compliance with legislation

Blue Mountain Resorts Ltd. v. Bok

Appellant successfully appealed an inspector's order that it was required to report a guest injury to the Ministry of Labour. The Court of Appeal held that the death of a hotel guest in an unsupervised pool was not connected to a potential hazard to employees or work safety issues and that it exceeded the scope of notification requirements set out by the Occupational Health and Safety Act.

[2013] O.J. No. 520

2013 ONCA 75

Ontario Court of Appeal

J.C. MacPherson, R.P. Armstrong and R.A. Blair JJ.A.

February 7, 2013

The appellant, Blue Mountain Resorts Ltd., appealed the dismissal of its application for judicial review of a decision of the Ontario Labour Relations Board (OLRB). The OLRB had upheld an inspector’s order that the appellant was required to report a guest injury to the Ministry of Labour after a guest had died while swimming in an indoor pool at the resort. Section 51(1) of the Occupational Health and Safety Act required an employer to notify an inspector if any person was killed or critically injured from any cause at a workplace and to send a written report of the circumstances of the occurrence.

The appellant had taken the position that it was not required to report deaths or critical injuries to guests at its recreational facility as a worker was not present at the site when the injury occurred. The inspector took the opposite view and issued an order for the appellant to report, which was upheld by the OLRB as staff members were required to be present at other times in the pool area in order to check and maintain it. The Divisional Court upheld the OLRB’s decision as reasonable.

The Court of Appeal allowed the appeal, set aside the Divisional Court’s decision and allowed the appellant’s application for judicial review. The Court also set aside the inspector’s order.

The Court held that the interpretation that had been given to s. 51(1) by the OLRB and the Divisional Court was unreasonable and could not stand. Both the OLRB and Divisional Court had held that the obligation created by s. 51(1) was not connected to a potential hazard to employees, and that an obligation to report existed when a death or critical injury occurred in the workplace.

The Court was of the view that, given the Act’s purpose and objective of protecting the health and safety of workers, the scope of notification and reporting duties must be constrained to circumstances that would pose a hazard with the potential to harm workers. While the death of a guest at the resort may raise supervision issues for the Appellant, it does not give rise to considerations of worker safety.