Ontario Court of Appeal Rules “Sometimes a Swimming Pool Is Just a Swimming Pool”
The Ontario Court of Appeal recently released its decision in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75, overturning a Divisional Court decision (2011 ONSC 3057) on the duties of employers and contractors under the Occupational Health and Safety Act (OHSA) to report a death or a "critical injury" to the Ministry of Labour (Ministry). Our previous piece on the onerous requirements on employers resulting from the Divisional Court decision can be found here.
In this case, a guest of Blue Mountain Resorts drowned in the resort swimming pool. The Divisional Court ruled that the resort swimming pool was a "workplace," under the definition in OHSA, and that employers are required to report all deaths and critical injuries occurring at a workplace and to preserve the scene of the occurrence, regardless of whether: (a) the injured individuals are workers; or (b) the incidents involve hazards that impact workers.
The Court of Appeal ruled that requiring employers to contact the Ministry and to preserve the site of every critical injury or death at a workplace, regardless of cause or if the person involved was a worker, was an absurd interpretation of the legislation. In order to give effect to the purpose of the OHSA – to protect worker safety – the Court of Appeal found that the duty to report and to preserve the site of a critical injury or death only arises where there is "some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at a workplace".1 The Court of Appeal stated, "[s]ometimes a swimming pool is just a swimming pool"2 and found that, in this case, there was no relationship between the cause of death and worker safety.
Although the Court of Appeal decision thankfully narrows the circumstances where the Ministry must be contacted and the scene must be preserved in the event of a death or critical injury in the workplace, it remains to be seen how the Ontario Labour Relations Board and the courts will interpret this new requirement for a "reasonable nexus" between the cause of the occurrence and worker safety.
Despite this case, the obligation to report is still broad – applying to workers and non-workers. As such, employers should still consider contacting the Ministry if there is a critical injury or death at the workplace (regardless of whether the injured person was a worker or not) so long as there is some connection to actual worker safety.
A more detailed commentary on the decision can be found on our Canadian Appeals Monitor blog, by our colleague, Kirsten Thompson.
1 Blue Mountain Resorts Limited v Ontario (Labour), 2013 ONCA 75 at para 66
2 Ibid at para 6
Blue Mountain Resorts critical injury death Ontario Court of Appeal Ontario Labour Relations Board Ontario Ministry of Labour risk swimming pool worker safety workplace hazard workplace safety