This was the comment of the Ontario Court of Appeal in the Occupational Health and Safety Act case, Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 decided in February of 2013.
The Blue Mountain case dealt with the application of the OHSA employer reporting requirements under Section 51(1) and the preservation of the accident scene requirements of Section 51(2) of that Act. A guest at the Resort had drowned in an unsupervised swimming pool at the Resort. No worker was present. No Report of the incident was made to the Ministry of Labour under Section 51 of the OHSA or otherwise in 2007.
A Ministry of Labour Inspector subsequently ordered the Resort to Report based on Section 51(1) which reads, in part, as follows:
“Where a person is killed or critically injured from any cause at a workplace, … the employer shall notify an inspector … immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence…”
The position of the Ministry of Labour, upheld at the Ontario Labour Relations Board and on Judicial Review by the Supreme Court of Ontario was essentially that every place is a workplace because a worker may, at some point, be at that place. According to the Court of Appeal, such an interpretation would mean that virtually every death or critical injury, to anyone, anywhere, whatever the cause, must be reported and the applicable site shut down under Section 51(2) of The Act until a Ministry of Labour Inspector released the site. The Court of Appeal properly found this to be an interpretation which would be absurd and therefore found that the decision by the OLRB should be overturned as unreasonable.
This reminds me of the time I attended Umpire’s School to receive Softball Rule interpretation guidelines for the coming year only to be forced to endure endless blathering about the alleged interpretation of the Rule governing how a base runner could be put out by a fielder who touches the base runner, while the base runner is off a base, with the ball contained in the fielder’s glove. The Umpire in Chief, obviously a lawyer wannabe, pronounced that the Rule in question could certainly be interpreted to mean that the fielder could touch the base runner with his empty hand while the fielder simultaneously was holding the ball in his glove hand, and thus put the base runner out. This was also patently absurd but nonetheless a literal reading of the applicable rule, as it then was.
In Blue Mountain the Court of Appeal ruled that an employer is required to report an occurrence and Section 51 of the Occupational Health and Safety Act will apply, if:
- · either a worker or non-worker is killed or critically injured within the meaning of the Act and Regulations;
- · the incident occurs at a place where either a worker is carrying out his duties when the incident occurs, or, where a worker might reasonably be expected to be carrying out his duties in the ordinary course; and,
- · there is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic link to worker safety at the workplace.
The Court of Appeal concluded that: “ … there was no evidence that the Blue Mountain guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.”
Accordingly, the Retail Store presumably does not have to report an occurrence and close down a portion of the store just because a customer suffers a heart attack in the store. However, what if a customer breaks his leg due to a slip hazard in an aisle or if material falls off the top shelf and strikes the customer causing unconsciousness? Is there a nexus between the hazard giving rise to the subject critical injury and worker safety at the workplace? Obviously, the facts still need to be assessed in each case, however, the Ontario Court of Appeal has done its best to clarify the “Rule Book” and establish a decision making framework in such circumstances.