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Appeal court to rule on reporting requirement under OHSA for non-worker injuries

The Divisional Court had upheld a conclusion by the Ontario Labour Relations Board that Blue Mountain Resorts was required to report the drowning of a guest at an unsupervised swimming pool to a Ministry of Labour inspector pursuant to section 51 of the Ontario Occupational Health and Safety Act (OHSA).

That such a notification was required for this incident is notable because it arose in a context in which no worker was involved. The court confirmed an expectation that critical and fatal events to all “persons” at Ontario workplaces be reported. As we described in our earlier post, this decision potentially establishes a very broad and onerous reporting obligation for Ontario employers. It also requires the preservation of the scene of the incident for Ministry of Labour inspectors. Detailed analysis of the Divisional Court and OLRB decisions was presented in a recent OHS & Workers' Compensation Management Update.

In its motion before the Court of Appeal, Blue Mountain Resorts argued that the OLRB’s broad interpretation of the OHSA reporting provision leads to “an absurd result.” It argued that the trigger for the reporting requirement could not be so broad as to include fatalities and critical injuries of customers using its recreational facilities. Furthermore, it cited the potential for serious disruption to the operations of Ontario businesses if the reporting requirements were broadly interpreted to include non-workers. The disruptions would notably include the requirement to preserve the scene for Ministry of Labour inspectors.

The Ministry of Labour unsuccessfully argued before the Court of Appeal that the lower court decision should not be reviewed because the Divisional Court properly interpreted the clear meaning of the terms in the section 51 reporting provisions of the OHSA, specifically that the term “workplace” had been properly interpreted to include the swimming pool.

The Court of Appeal will hear the matter on a date yet to be announced. Because of the onerous obligations imposed on employers as a result of the lower court decision, guidance from the Court of Appeal on the interpretation of the reporting obligation will be very helpful.

Cheryl A. Edwards is a former Ontario Ministry of Labour OHS prosecutor and now leads Heenan Blaikie's national OHS and workers' compensation practice. She can be reached at cedwards@heenan.ca or (416) 360-2897.

Prepared with assistance from Konrad Pola, student-at-law.

Cheryl A. Edwards

Cheryl Edwards is a former occupational health and safety prosecutor with almost 30 years of experience. She can be reached at (647) 777-8283 or cedwards@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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