The Divisional Court has ruled that employers’ duty under the Occupational Health and Safety Act to report all fatal and critical injuries at a workplace extends beyond workers to members of the public when the incident arises from potential hazards or risks to employees.
“Blue Mountain impacts on any workplaces that are accessible to the public, such as hotels and resorts, hospitals, retirement homes, and retail stores, and represents a very burdensome approach for employers,” says Mary Beth Currie of Bennett Jones LLP’s Toronto office.
“Consider the position of ski areas that have 30 broken legs in a single weekend or a large public place like the Eaton Centre if they have to call the ministry each time a guest is injured in a place that’s accessible to employees.”
Indeed, the Ontario Association of Chiefs of Police sought to intervene in Blue Mountain, arguing that requiring the police to give notice each time someone died would constitute an interference with their duties under the Police Services Act.
“The intervention application failed but it does highlight the difficult intersection between workplace injuries to the public and workplace injuries to workers,” Currie says.
The case arose in December 2007, when a guest of Blue Mountain Resorts drowned in an unsupervised swimming pool there. Blue Mountain didn’t report the incident to the ministry because it didn’t involve a worker.
But Richard Den Bok, a ministry inspector, ordered Blue Mountain to report the death pursuant to s. 51(1) of the act, which requires employers to do so when any person is killed or injured at a workplace.
The Ontario Labour Relations Board upheld the order. It reasoned that reporting was necessary when workers are vulnerable to the hazard underlying an incident.
The board also ruled that all of the roughly 300 hectares of land at the Blue Mountain Resort constituted a workplace.
The Divisional Court upheld the board’s interpretation that non-worker injuries were reportable. But in doing so, the court may have created more confusion than clarity. Oddly, the difficulty lies in the court’s rejection of the board’s conclusion that all of Blue Mountain was a workplace.
According to the court, there was no dispute that the swimming pool was a place where staff worked, and the absence of an employee at the time of the incident didn’t detract from the fact that it was a workplace.
Since “workers and guests are vulnerable to the same hazards,” it served the legislation to have employers report common risks.
But that didn’t mean that all of Blue Mountain was a workplace. Rather, what constituted a workplace was dependent on the facts of each case with regard to the nature of the hazard, the context in which the injury occurred, and the nexus with worker safety.
But the court ruling leaves employers in a conundrum even though it may be preferable to living with the board’s finding that all 300 hectares constituted a workplace.
“The difficulty going forward is that employers will have to do a detailed individual analysis of each situation to determine whether a worker could have been injured by the risk or hazard,” says Nadine Zacks of Hicks Morley Hamilton Stewart Storie LLP.
Ryan Conlin of Toronto’s Stringer Brisbin Humphrey Management Lawyers is advising clients to take a cautious approach to reporting.
“For the time being, I’m telling my clients to report all injuries whether to workers or non-workers” he says.
Ironically, an overwhelmed ministry may come to regret the Blue Mountain decision as many employers start to do the same thing out of an abundance of caution.
“Employers who have never thought about reporting before will now have to think hard about it,” Currie says.
The ministry disagrees with the concerns, however. The ruling “is consistent with the ministry’s existing operational policy on enforcement of these requirements
in cases where a non-worker is killed or critically injured at a workplace,” said spokesman Matt Blajer.
“An employer is required to notify the ministry if a non-worker is critically injured or killed at a workplace if the hazard that caused the incident also presents a risk to the health and safety of workers at that workplace. This is a reasonable expectation and should not be burdensome for employers.”
In the meantime, Currie suggests that in the event of non-worker injuries, employers should give notice and ask the ministry whether it will be investigating and whether it’s prepared to release them from their obligation to preserve the scene.
“I’m also advising clients who give notice to be very specific about how the injury came about in the hope of encouraging the ministry that this is not a case that bears investigation under the [act],” Currie says.
One veteran practitioner, who spoke on condition of anonymity, believes the decision is unworkable.
“This is a wrong decision that is very, very tough on employers,” the lawyer says. “I hope that Blue Mountain takes the case further.”
There was no word on that at press time.