Employers breathe a sigh of relief: Ontario Court of Appeal overturns Blue Mountain Resorts OHSA decision
Last week the Ontario Court of Appeal released its highly anticipated decision in the Blue Mountain Resorts case, which we had previously discussed here. The Court allowed the appeal and overturned the decision of the Ontario Labour Relations Board which had been upheld by the Divisional Court, finding the OLRB’s interpretation of the OHSA unreasonable. Ultimately, the Court of Appeal held that employers are not required to report every critical injury or death of a person at a workplace, but rather only those where the hazard giving rise to the death or critical injury poses a realistic risk to worker safety.
The case involved the drowning of a Blue Mountain guest in an unsupervised swimming pool. Blue Mountain did not report the death to the Ministry of Labour, as it did not deem the swimming pool to be a “workplace” and the drowning did not involve a worker. A Ministry of Labour inspector disagreed, and ordered Blue Mountain to report the fatality. Blue Mountain appealed the order, but the OLRB agreed with the inspector and the order was upheld. On judicial review, the Divisional Court found the OLRB’s determination that the unsupervised swimming pool was a “workplace” to be reasonable, and upheld the OLRB’s decision. Further details regarding the Divisional Court’s decision can be found in our prior post here.
Blue Mountain appealed to the Court of Appeal, arguing that it was not required to report the fatality because the facility is not predominately a workplace and a worker was not present at the site when the drowning occurred.
The Court of Appeal agreed. It conducted a purposive and contextual review of the applicable language of the OHSA that required notification “where a person is killed or critically injured from any cause at a workplace”, and determined that the interpretation of the OLRB and Divisional Court would deem virtually every place in Ontario, whether commercial, industrial, private or domestic, a “workplace” because a worker may be present at some point. This interpretation led to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported to the Ministry of Labour. In fact, counsel for the Ministry conceded before the Board that based on the Ministry’s interpretation, no location, aside from an abandoned woodlot, would be free from the notification and reporting requirement.
The Court of Appeal went on to provide its interpretation, stating that an employer’s notification and reporting obligations are engaged where:
- a worker or non-worker (a person) is killed or critically injured;
- the death or critical injury occurs 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 or her work (workplace); 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 (from any cause).
Essentially, the Court held that a proper interpretation of the OHSA required there to be some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the site. Applying the test to the circumstances at hand, the drowning of a guest at Blue Mountain’s unsupervised swimming pool would not trigger notification and reporting obligations, as the hazard giving rise to the death, drowning, did not pose a realistic risk to the safety of any Blue Mountain workers.
This decision is valuable, in that the Court of Appeal utilized practical and common sense reasoning to overturn an interpretation that was incongruous with the realities of the workplace. Moving forward, we encourage Ontario employers to apply the foregoing test to those critical injuries or deaths occurring on their premises to non-workers, to ensure that they are meeting their notification and reporting obligations under the OHSA.