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Blue Mountain Resort case triggers new reporting obligation

Under the Occupational Health and Safety Act (OHSA), critical and fatal injuries must be reported to the provincial health and safety regulator, the Ministry of Labour. This provision had been normally understood to require employers to report injuries to employees or workers. However, the May 18, 2011, decision of Justice Low supports the ruling of the OLRB that this obligation also extends to guests at resorts or other tourism facilities.

The case arose when Ministry of Labour inspector, Richard Den Bok, issued orders to Blue Mountain Resorts Limited, arising from a guest drowning in an unsupervised swimming pool at the resort. The Ministry of Labour (MOL) inspector ordered the resort to comply with section 51(1) of the OHSA requiring reporting when a "person is killed or critically injured from any cause at a workplace".

The guest was clearly not a worker governed by the OHSA. However, the legal issue on the appeal before the OLRB and then the divisional court on judicial review was whether or not the reporting obligation applied to a resort in the circumstances where it was a guest, and not a worker, that was critically or fatally injured.

The two issues that were argued by the appellant Blue Mountain Resort before the divisional court were:

1. Does the use of the word "person" in section 51(1) of the OHSA mean just a "worker" or does it apply to a guest at a resort?;

2. Does an unsupervised swimming pool at a resort constitute a "workplace" for the purposes of the reporting obligations of employers under the OHSA?

The first significant part of the ruling by the divisional court was that it gave the OLRB significant deference as "an expert Tribunal exercising its powers of division in the administration of the statute within its area of responsibility". This is an interesting proposition advanced by the divisional court, since the OLRB is known as an expert in adjudicating the labour relation decisions but not necessarily occupational health and safety matters.

The divisional court also said, in a rather narrow, literal interpretation of section 51(2) that "on a plain reading of the subsection, any event resulting in death or critical injury, even if occurring in circumstances having no potential nexus with workers' safety, is reportable so long as they occur at a workplace." One troubling aspect of this statement by the divisional court is that the OHSA is legislation exclusively directed at employers, and other workplace stakeholders, for the health and safety of employees and workers in Ontario. The OHSA is not a public safety statute.

It is not intended to broadly apply to the safety of the public, or more specifically guests at tourist resorts in Ontario. The divisional court clearly failed, in this writer's opinion, to consider the broader purpose and intent of the OHSA in this aspect of the ruling.

The divisional court acknowledged in its decision that Blue Mountain Resort was concerned with the potential for serious disruption to its operations if the term "person" was to apply to every guest at the resort and if the term "workplace" applied to every area of the resort where a guest might venture, even if it was not at the same time or place that a worker employed by the resort was performing work.

Further, the applicant resort argued that the need to preserve a workplace, if there was a critical or fatal injury, was nearly impossible in such a large ski/summer resort. Ongoing services to guests would be significantly disrupted if an incident occurred and an accident scene had to be preserved for an MOL inspector to conduct an investigation.

The divisional court went on to state, without referring to any supporting evidence, that "workers and guests are vulnerable to the same hazards". This statement by the court clearly appears to have expanded the purpose and role of the OHSA well beyond worker safety, to public safety. It went on to further justify the OLRB's decision when it said that even though a worker was not present at the time that a guest drowned in the resort swimming pool, that at other occasions, workers may attend at the swimming pool to perform work. This is really a separate issue but the court treated them the same. The court's logic, however, means that any property, including resorts and tourist attractions in Ontario, will all be considered workplaces if, at any time, workers may be in the vicinity where a member of the public is injured or killed.

In the result, the divisional court rejected the judicial review application of Blue Mountain Resort, upheld the decision of the OLRB and dismissed the case. The direct result of this decision is that all resorts and tourism operations, and any other employers that have interaction with the public, must now report any and all critical or fatal injuries that occur in the workplace to the MOL. Employers must also preserve the incident scene and perform no work in that area, effectively shut down the resort or tourist operation until the MOL attends, investigates and releases the scene.

This ruling, presumably, would also apply to public highways, shopping malls, parks, and conservation areas throughout Ontario where workers will, from time to time, perform work to which the public has access. The divisional court decision necessarily requires a much broader approach by all private and public employers in Ontario of their obligations to report critical and fatal injuries to the Ministry of Labour and to shut down workplaces until the MOL inspector attends the scene, completes the investigation and releases the incident scene.

The unintended result of this case will likely be a flood of reports to the MOL inspectors, across the province of Ontario, now that the law has been clarified by the divisional court. All employers, both private and public across the province, should look carefully at their reporting policies, training obligations and OHS management systems to ensure all relevant personnel understand the reporting obligations, and also prepare to deal with MOL inspectors who have a mandate from the Ministry of Labour to investigate, fight orders and prosecute employers for both worker and non-worker incidents at workplaces across the province.

For more information on the reporting obligations under the OHSA and the implications of this decision, please feel free to contact the author, Norm Keith, at 1-866-862-5787, ext. 85699 or norm.keith@gowlings.com

Norm Keith

Norm Keith, an OHS lawyer and consultant, is a partner at Fasken Martineau DuMoulin in Toronto. He can be reached at (416) 868-7824 or nkeith@fasken.com, or visit www.ehslaw.ca for more information.
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