BLUE MOUNTAIN DECISION: WHEN MUST EMPLOYERS REPORT WORKPLACE ACCIDENTS SUFFERED BY NON-WORKERS?

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1 BLUE MOUNTAIN DECISION: WHEN MUST EMPLOYERS REPORT WORKPLACE ACCIDENTS SUFFERED BY NON-WORKERS? CHRISTOPHER M. LITTLE BONNEA CHANNE This paper is for general discussion purposes and does not constitute legal advice or an opinion. For legal advice regarding your particular circumstances, please contact us.

2 TABLE OF CONTENTS Introduction... 1 Legislative Framework: The Occupational Health and Safety Act... 1 The Blue Mountain Decision... 3 Facts... 3 The Ontario Labour Relations Board s Decision... 4 Ontario Divisional Court... 7 The Court of Appeal... 7 Conclusion... 9 Practical Considerations... 9

3 INTRODUCTION Under subsection 51(1) of the Ontario Occupational Health and Safety Act ( OHSA ), an employer must notify the Ministry of Labour of a critical injury or death that occurred at the employer s workplace. Until recently, there was some debate as to whether an employer s reporting obligation under subsection 51(1) would be triggered if a critical injury or death to a non-worker occurred on the employer s premises when no workers were working at the time of the incident. The Ontario Court of Appeal dealt with this issue in Blue Mountain Resorts Ltd. v. Bok, [2013] O.J. No. 520 ( Blue Mountain ). The Court of Appeal ruled that a critical injury or death to a non-worker on an employer s premise does not trigger an employer s reporting obligation under subsection 51(1) unless there is a reasonable nexus between the hazard causing the critical injury or death and a risk to worker health and safety. LEGISLATIVE FRAMEWORK: THE OCCUPATIONAL HEALTH AND SAFETY ACT OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers: Ontario (Ministry of Labour) v. United Independent Operators Ltd., [2011] O.J. No. 236 (Ont. C.A.). OHSA imposes various substantive and procedural obligations on employers and workers aimed at ensuring and/or improving workplace health and safety. Among the various employer obligations, OHSA requires employers to notify a Director of the Ministry of Labour in certain circumstances. One type of circumstance that may trigger this reporting obligation is when a person is killed or critically injured at a workplace. Subsections 51(1) and (2) state as follows: Notice of death or injury 51. (1) Where a person is killed or critically injured from any cause at a 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

4 2 the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. Preservation of wreckage (2) Where a person is killed or is critically injured at a workplace, no person shall, except for the purpose of, (a) saving life or relieving human suffering; (b) maintaining an essential public utility service or a public transportation system; or (c) preventing unnecessary damage to equipment or other property, interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector. The above provisions establish both a reporting obligation and an obligation to preserve the scene of an incident that resulted in a death or critical injury. The terms employer and workplace are defined under subsection 1(1) of OHSA, while critical injury is defined under Regulation 834 to OHSA. An employer is defined as:...a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.

5 3 A workplace is defined as any land, premises, location or thing at, upon, in or near which a worker works. A critical injury is defined as an injury of a serious nature that (a) places life in jeopardy, (b) produces unconsciousness, (c) results in substantial loss of blood, (d) involves the fracture of a leg or arm but not a finger or toe, (e) involves the amputation of a leg, arm, hand or foot but not a finger or toe, (f) consists of burns to a major portion of the body, or (g) causes the loss of sight in an eye. The term person, which appears in subsection 51(1), is not defined under OHSA or its regulations. Facts THE BLUE MOUNTAIN DECISION Blue Mountain Resorts Limited ( Blue Mountain or the Company ) operates a resort consisting of ski runs, an inn and other recreational facilities near Collingwood, Ontario. Blue Mountain s resort covers approximately 750 acres. During the peak season, Blue Mountain employs approximately 1750 workers. On December 24, 2007, a guest of Blue Mountain was found dead in an unsupervised, indoor swimming pool at the resort. No workers were present at the time of the death, nor did it appear that any witnesses were present. Blue Mountain initially believed that the guest had suffered a heart attack. The Company later learned from the police that the guest had actually drowned.

6 Blue Mountain did not report the incident to the Ministry of Labour because the Company did not consider subsection 51(1) of OHSA to apply. The Company did not believe its reporting obligations were triggered because, among other things, the incident did not involve a critical injury or death to its workers, and no workers were present at the time of the guest drowning. In Blue Mountain s view, the drowning was not an incident that occurred at a workplace and did not raise any issue concerning the safety of its workers. Subsequently, a Ministry of Labour inspector (the Inspector ) attended at Blue Mountain s premises as part of a field visit. Field visits are conducted by Ministry of Labour inspectors for the purpose of conducting an inspection, investigation or consultation, and such visits may result in orders being issued against an employer to achieve compliance with OHSA. Following the Inspector s field visit at Blue Mountain s premises, the Inspector issued various orders against Blue Mountain, including an Order dated March 27, 2008 (the Order ), which stated that Blue Mountain breached subsection 51(1) by not reporting to the Ministry of Labour that a guest had drowned. The Order directed Blue Mountain to comply with its reporting obligations forthwith. Blue Mountain appealed the Inspector s Order to the Ontario Labour Relations Board (the Board ). The Ontario Labour Relations Board s Decision At the Board, Blue Mountain took the position that there was no breach of subsection 51(1) because the provision did not apply to the drowning incident of December 24, Blue Mountain advanced two arguments in support of its position. First, the term person in subsection 51(1) must be interpreted to mean worker. Second, and in the alternative, the term workplace must be interpreted to mean a place where a worker is present and working in the area. In other words, for the reporting obligation to apply, there must be a critical injury or death to a worker and, in addition or in the alternative, the critical injury or death must occur where a worker is present and working at the time of the incident. Blue Mountain argued that if the reporting obligation were to apply whenever a guest or other non-worker sustained a critical injury, this would result in potential significant operational difficulties, additional hazards, and business losses. It was Blue Mountain s evidence that during some of 4

7 its busiest weekends of the ski season, there could be up to 39 incidents that may fall within the definition of a critical injury, given that Regulation 834 defines a critical injury to include a fracture of a leg or an arm. If the reporting obligation applied, Blue Mountain would have to report each of those incidents to the Ministry of Labour. In view of the obligation under subsection 51(2) to preserve the scene of an accident, Blue Mountain would also have to barricade or close off the ski runs where an incident occurred. The barricades and resulting narrowing of ski runs would pose additional hazards to skiers. As well, the closure or narrowing of ski runs would create operational difficulties for Blue Mountain and could potentially result in business losses. The Ministry of Labour, meanwhile, took the position that subsection 51(1) ought to be interpreted broadly and that, specifically, person must be interpreted to mean both workers and non-workers and that workplace must be interpreted to mean anywhere that is visited by workers in the common or normal course of their duties. Accordingly, it was the Ministry of Labour s view that where there was a critical injury or death to a worker or non-worker, the reporting obligation under subsection 51(1) applied if the incident occurred at a place upon where a worker could be expected to attend to perform his or her normal duties, even if no workers were present at the time of the incident. The Ministry argued that a broad interpretation of subsection 51(1) was necessary to further the purpose of enhancing the safety of workers in the workplace. The Ministry argued it would not be absurd for Blue Mountain or other employers to report critical injuries involving guests. If workers attend at a place where a non-worker sustained a critical injury or is killed, workers could be exposed to the same hazards and risks that resulted in the critical injury or death to a non-worker. The Ministry explained that Blue Mountain workers attend at the pool area from time to time to perform such duties as cleaning the pool. Since Blue Mountain initially did not know the cause of the guest s death, it was possible that the death could have been caused by such hazards as chemical fumes. If that were the cause, workers entering the pool area would also be exposed to the same hazard. As such, reporting the guest drowning to the Ministry would allow the Ministry to take the necessary steps to ensure there were no hazards that could present a risk to the health and safety of workers. 5

8 The Board accepted the Ministry s submissions and was persuaded by the argument that workers may be exposed to the same hazards and risks that caused a critical injury or death to a non-worker. The Board therefore agreed that a broad interpretation of subsection 51(1) would be consistent with OHSA s purpose of enhancing worker safety. In the Board s view, the term person included both workers and non-workers. As such, a critical injury or death to a resort guest or other non-worker would not necessarily render subsection 51(1) inapplicable. As for the term workplace, the Board stated that a workplace refers to an area where employees perform work functions and that the absence of an employee from that area does not result in the location not being a workplace for the purposes of OHSA. In finding that the swimming pool where the drowning occurred constituted a workplace, the Board stated as follows: Based on general and common knowledge I infer that at least one and perhaps more Blue Mountain employees must enter the enclosed area of the indoor swimming pool in order to clean and check the water at least once, and likely more times, each day. The swimming pool thus comprises a part of at least one Blue Mountain employee s workplace. It does not cease to be a workplace because the employee in questions moves from that area of his or her workplace to another area of the same workplace. The Board further found that Blue Mountain s entire resort, including the ski hills, buildings, parking lots and swimming pool, constituted a workplace, even if no employees are present in an area during a particular time. The Board noted that Blue Mountain s employees move about performing work functions within all or a part of this area [the resort] on a daily basis. The Board therefore concluded that subsection 51(1) applied to Blue Mountain in respect of the drowning incident and therefore affirmed the Inspector s Order of March 27, Blue Mountain subsequently filed an application for judicial review of the Board s decision. 6

9 7 Ontario Divisional Court The Divisional Court dismissed Blue Mountain s application for judicial review. The Divisional Court found that the Board s interpretation of subsection 51(1) was reasonable. The Divisional Court agreed with the Board that person included both workers and non-workers and stated that any event resulting in death or critical injury, even if occurring in circumstances having no potential nexus with worker safety, is reportable so long as they occur in a workplace. With respect to the definition of workplace, the Divisional Court disagreed with the Board s conclusion that Blue Mountain s entire resort constituted a workplace. The Divisional Court stated as follows: That said, we are not persuaded that the Board reasonably concluded that the whole of the Blue Mountain resort is a workplace. Such a finding conflates, in our view, the proprietary interests of the applicant in the 750 acres of property with the statutory definition of workplace and it goes significantly farther than was necessary for purposes of disposing of the appeal. Each case must be determined on its own facts. The Divisional Court, however, found it was not unreasonable for the Board to conclude that Blue Mountain s swimming pool constituted a workplace since one or more workers would attend at the area to perform certain duties. The Divisional Court concluded that it was reasonable for the Board to conclude that Blue Mountain was required to report the swimming pool drowning to the Ministry of Labour. The Divisional Court dismissed the application for judicial review. Blue Mountain appealed the Divisional Court s decision to the Court of Appeal. The Court of Appeal The issue on appeal was whether the Board and Divisional Court reasonably concluded that Blue Mountain was required to report the guest drowning pursuant to subsection 51(1) of OHSA. The Court of Appeal disagreed with the Board and Divisional Court s interpretation of

10 subsection 51(1). The Court of Appeal noted that the Board and Divisional Court s interpretation would result in the reporting obligation under subsection 51(1) to be triggered whenever someone died or was critically injured at or near a place where a worker is working, has passed through, or may at some other time work, regardless of the cause of the incident. The Court of Appeal found that such an open-ended interpretation was unreasonable and could lead to absurd results. This absurdity became apparent when the reporting obligation under subsection 51(1) was considered in conjunction with the obligation under subsection 51(2) to preserve the scene of an incident. For instance, the Ministry of Labour conceded that, under its approach, if there were a critical injury to a hockey player or a spectator during an NHL game at the Air Canada Centre, it would have to be reported to the Ministry of Labour. If the injury occurred on the ice, in order to preserve the scene of the incident, the hockey game would have to be suspended until the premises were released by a Ministry inspector. As a further example, roads would have to be closed down if a driver sustained a critical injury on highways patrolled by the police. The Court found such results were absurd because there appeared to be no causal connection between the injury and any workplace safety issue. (Blue Mountain did not appeal the lower decisions as they related to the interpretation of person, and, furthermore, the Court of Appeal agreed that the definition of person under section 51 included workers and nonworkers.) In the view of the Court of Appeal, a narrower interpretation of section 51 was necessary to avoid absurdities such as the above examples. The Court of Appeal held that a reasonable interpretation of OHSA required a nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker health and safety. The Court established the following three-part test to trigger the requirements of section 51: 1. A worker or non-worker ( any person ) is killed or critically injured; 2. The death or critical injury occurred at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his/her work ( workplace ); and 8

11 3. There is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker health and safety ( from any cause ). The Court stated that the above test is consistent with OHSA s purpose of protecting the health and safety of workers. The Court found that the guest drowning incident did not meet the third condition of the above test and, therefore, did not trigger Blue Mountain s obligations under subsection 51(1). Given that the death was due to a drowning, there was no evidence that the drowning was caused by any hazard that could affect the safety of a worker. As the Court put it, [s]ometimes a swimming pool is just a swimming pool. The Court therefore allowed Blue Mountain s appeal and set aside the decision of the Divisional Court and the Order of the Ministry of Labour s Inspector. CONCLUSION The Court of Appeal s decision narrows the interpretation of section 51 and, in particular, may limit the circumstances in which an employer must report a critical injury or death to the Ministry of Labour and preserve the scene where the incident occurred. Employers and their counsel will need to apply the Court of Appeal s three-part test to determine whether the Ministry of Labour must be notified and the scene of the incident preserved. Subsequent Board and court decisions applying the three-part test may provide further guidance regarding what amounts to a reasonable nexus between a hazard giving rise to a critical injury or death and a realistic hazard to worker health and safety. Practical Considerations Several practical considerations can be taken from the decision: If an accident occurs on an employer s premise, consider whether there are any injuries that might meet the definition of a critical injury as defined under Regulation 834 to OHSA. If there has been a critical injury or potential critical injury, ensure that the scene of the accident is preserved. This may require the area to be barricaded or blocked off. To the extent possible, items in or 9

12 around the area of an incident should not be removed, interfered with or destroyed. Consider whether an accident occurred at a place where workers are reasonably expected to attend in the course of carrying out their duties. The more difficult task may be determining whether there is a reasonable connection between the hazard resulting in a critical injury or death and worker health and safety. Employers and their legal counsel should consider the specific range of tasks performed by its workers and how, in the course of performing those tasks, workers might be exposed to the same hazard that resulted in a critical injury or death. 10

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