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Ontario appeals court overturns ruling in Blue Mountain fatality

By Julie-Anne Cardinal
| www.cos-mag.com

"Sometimes a swimming pool is just a swimming pool."

So says the Ontario Court of Appeal in handing down its highly anticipated decision in

Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board)

, which overturns the decisions of the Ontario Divisional Court and the Ontario Labour Relations Board (OLRB).

The Court of Appeal found that Ontario’s Occupational Health and Safety Act (OHSA) does not require employers to report every critical injury or death to all "persons" at a workplace. Rather, the OHSA only requires employers to report critical injuries or deaths at a workplace that have a nexus to a realistic risk to worker safety.

The case involves the drowning death of a guest in the Blue Mountain Resort’s unsupervised swimming pool on Christmas Eve, 2007. No workers were present at the time of the incident, and so Blue Mountain chose not to report the fatality to the Ministry of Labour, reasoning that the incident did not occur in a “workplace” and did not involve a worker. In March of the following year, a Ministry of Labour inspector on a routine visit to the resort learned of the fatality and issued an order to Blue Mountain citing it for failing to report the fatality.

The Resort appealed the inspector’s order to the OLRB. The OLRB upheld it, ruling that the OHSA requires all critical injuries and fatalities to any “person” in a “workplace” be reported to the Ministry. On judicial review, the Ontario Divisional Court upheld the OLRB’s decision as reasonable.

On appeal to the Court of Appeal for Ontario, Blair J.A., held:

"The interpretations (the Divisional Court and OLRB) gave to s. 51(1) of the OHSA would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a 'workplace' because a worker may, at some time, be at that place. This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. Such an interpretation goes well beyond the proper reach of the Act and the reviewing role of the ministry reasonably necessary to advance the admittedly important objective of protecting the health and safety of workers in the workplace. It is therefore unreasonable and cannot stand."

The Court went on to note that, "a proper interpretation of the Act requires that there be some reasonable nexus between the hazard giving rise to the death... and a realistic risk to worker safety at that site." This conclusion is in keeping with the arguments advanced by Blue Mountain Resort, and the two intervenors in the case — Conservation Ontario and the Tourism Industry Association of Ontario — in the appeal hearing before the court last fall.

The decision should prove to be welcome news for employers whose workplaces welcome or engage the general public, as it limits an employer's reporting and notification obligations to situations where:

- a worker or non-worker is killed or critically injured;

- the death or critical injury occurs at a place where a worker is carrying out his or her employment duties at the time the incident occurs, 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,

- there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace.

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Julie-Anne Cardinal is an associate of Heenan Blaikie's Labour and Employment Law Group. Contact her at jcardinal@heenan.ca or visit Heenan Blaikie's Labour, Employment and Pension practice group.

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