Canadian Occupational Safety

18 Canadian occupational safety www.cos-mag.com By norm Keith legal CoNNeCTioN Blue mountain wins at Court of appeals decision clarifi es reporting requirements for non-worker critical injuries in ontario trAining i CompensAtion wAtCh t he Court of Appeal for Ontario has released its decision in the Blue Mountain Resorts Limited case relating to the death of a guest at the resort in 2007. e central issue in the case was whether or not Blue Moun- tain Resorts was required to report a guest fatality to the Ministry of Labour. e case raises important issues on the interplay between occupational health and safety and public health and safety. Blue Mountain Resort owns and operates an all-season resort and recre- ational facility near Collingwood, Ont. On Dec. 24, 2007, a guest went swim- ming in an untended, non-employee supervised, indoor pool at the resort. An employee found the guest uncon- scious and a defi brillator was used in an attempt to revive him. e resort assumed the guest had suff ered a heart attack, but an autopsy determined the cause of death was drowning. At the time of the drowning, the swimming pool was unsupervised and no employee was working in the vicin- ity of the swimming pool. Blue Mountain did not notify nor submit a written report to the Minis- try of Labour regarding the drowning death. Ministry of Labour inspector Richard Den Bok issued an order direct- ing the resort to comply with section 51 (1) of the Occupational Health and Safety Act (OHSA) in relation to the drowning death. That provision states: "Where a person is killed or critically injured from any cause at the workplace, the Con- structor, 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 a er the occurrence, send to a Director, a written report of the circumstances of the occurrence containing such information and par- ticulars as the regulations prescribe." e order was appealed to the Ontario Labour Relations Board (OLRB). e OLRB heard evidence there are about 1.5 skiing related incidents for every 1,000 visitors at the Blue Moun- tain Resort during the ski season. ere could be as many as 38 to 40 occasions every weekend where accidents involv- ing "critical injuries," as defi ned by the OHSA and its regulations, would have to be reported to the Ministry of Labour. Bok told OLRB that, in most cases, a release of the accident scene would be provided by the ministry inspector on call if critical injuries suff ered by guests of Blue Mountain Resort were called into the Ministry of Labour. A representative of the Ontario Snow Resorts Association testifi ed about 7,000 accidents at resorts occurred during the 2007-2008 ski season. Evidence was also heard that although the Ministry of Labour has been well aware of Blue Mountain's existence for more than 27 years, it had never previously issued an order with respect to a critical injury or fatality of a guest. e ministry argued its shi in policy was due to a number of resorts appearing to engage in high-risk activi- ties and increased number of critical injuries to guests in recent years. The OLRB upheld the ministry inspector's order. Blue Mountain applied for judicial review to the Divi- sional Court, without success. It then applied for leave to appeal to the Court of Appeal, which it received. e Court of Appeal made several interesting analytical fi ndings before it rendered its fi nal judgment. First, the court noted that simply because a generous approach should be given to interpreting public welfare legislation such as the OHSA, it does not permit "a limitless interpretation of their provisions." Such an approach may result in the legislation going far beyond what was intended by the legislature. Second, the Court of Appeal agreed with the OLRB that workers may be subject to the same workplace hazards that may cause critical injuries or death to non-worker guests. However, it said that concern must be anchored in a hazard or risk that has potential harm to workers, and not be a vague or gen- eral hazard or risk. ird, the Court of Appeal held the OLRB's decision had the potential to reach far beyond the purpose of the OHSA and result in unreasonable or unwieldy ramifi cations. Fourth, the Court of Appeal held that section 51 (1) of the OHSA must be read in light of the subsection that follows it, dealing with preserving the incident scene until there has been an investigation by a Ministry of Labour inspector. is had not been part of the review and analysis of the OLRB, the court said. As a result, the OLRB ignored the possibility of shutting down part or all of the resort for the purpose of conducting a workplace and worker safety investigation. The Court of Appeal held that the consequences of the OLRB and Divisional Court's decision were incom- patible with the objectives of the OHSA and extended the scope of Ministry of Labour powers beyond what could rea- sonably be required to accomplish the purposes of promoting and preserving workplace safety. In its decision, the court said: " e notification and reporting require- ments of section 51 (1) of the Act are engaged where: a) a worker or non- worker is killed or critically injured; b) the death or critical injury occurs at a place where a worker is carrying out his or her employment duties at the time the incident occurs, or a place where a worker might reasonably be expected to be carrying out such duties in the ordi- nary course of his or her work; and there is some reasonable nexus between the hazard giving rise to the death or criti- cal injury and a realistic risk to worker safety at that workplace." e Court of Appeal said the inter- pretation of section 51 (1) of the OHSA by the Ministry of Labour inspector, the OLRB and the Divisional Court was unreasonable. Justice Robert Blair, writing for the three-member panel of the Court of Appeal said, " e interpretation I adopt conforms to the purpose and objective of the act and is consistent with the pro- visions of the act as read as a whole." Implications for employers are broad and not easily determined from this Court of Appeal decision. A critical injury or fatality of a non- worker need not always be reported to the Ministry of Labour. ere must be, as the court indicated, a nexus between the hazard giving rise to the critical injury or death and a realistic risk to workers' safety. It is not always clear who will make the judgment regarding this nexus. Presumably it is, at fi rst instance, the employer. However, a Ministry of Labour inspector may still take a diff erent view and issue an order or even prosecute the employer for failure to report. It is always recommended the employer obtain legal advice as to whether or not they should report a critical injury or fatality to the Ministry of Labour—whether or not it is a worker or a member of the public. Without proper legal advice, employers run the risk of wrong interpretation, putting them at risk of prosecution for failing to report a critical injury or fatality. It will be interesting to see if the Ministry of Labour will change its fi eld direction to inspectors as a result of this case. One thing is certain — the Court of Appeal has supported a more contex- tual and less literal approach to section 51 of the OHSA. Other provisions of the OHSA may have broader implications and rami- fications for other interpretations, including but not limited to cases cur- rently before the courts where charges are being prosecuted under the OHSA. Norm Keith is a partner at Gowlings. He leads the fi rm's national occupa- tional health and safety practice. He may be contacted at 1-866-862-5787 ext. 8599 or norm.keith@gowlings.com. THeRe mUsT Be a NeXUs BeTWeeN THe HaZaRD giviNg RISe to the CRiTiCal iNjURy oR DeaTH aND a RealisTiC RisK To WoRKeRs' saFeTy

• Cover