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Considering the word “occupational” in the title of the Occupational Health and Safety Act (“OHSA” or “Act”), a reasonable assumption is that this Act only applies to workers and employers in the course of employment. After all, the definitions in the Act, indeed the entire regulatory purpose, appear directed at and limited to employers and workers for the purpose of preventing workplace accidents and mandating the reporting of accidents.
Yet, this assumption is likely wrong. The Ontario Labour Relations Board (“OLRB”) concluded in a 2009 decision that, even when a critical injury or death occurs to a non-worker, the employer where the accident occurs still must report such accident to an Inspector and Director named under the Act.
That conclusion of the OLRB means that, for all Ontario employers, whenever a critical injury or death occurs on their premises a reporting obligation to the Ministry of Labour arises. The case at issue involved a hotel. Yet for any establishment which is likely a “workplace” as defined in the OHSA, the safest approach is to report any critical injury or death to the Ministry of Labour even if there is doubt that the individual involved was a worker, and was in the course of employment at the time of the accident or death.
Thus, if a patron in a restaurant or a customer in a store suffers a critical injury or worse, the default position should be to report such incident to the Ministry of Labour. Such a cautious approach should be undertaken at least until the decision of the Divisional Court judicially reviewing the OLRB decision is released, and there is more clarity and certainty in this area.
Relevant sections of the OHSA:
Section 51(1) reads as follows:
“Notice of death or injury: Where a person is killed or critically injured from any cause at a workplace, the constructor, 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, telegram 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 containing such information and particulars as the regulations prescribe [emphasis added].”
A “worker” is defined at section 1 of the OHSA as follows:
“worker means a person who performs work or supplies services for monetary compensation but does not include an inmate of a correctional institution or like institution or facility who participates inside the institution or facility in a work project or rehabilitation program.”
“Workplace” is defined at section 1 of the OHSA as follows:
“workplace means any land, premises, location or thing at, upon, in or near which a worker works.”
“Employer” is defined in section 1 of the OHSA as follows:
“employer means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.”
The OLRB Decision:
The OLRB decision of Blue Mountain Resorts Limited vs. Richard Den Bok and Ministry of Labour dated March 23, 2009 involved a resort guest who, on December 24, 2007, was discovered dead in the indoor swimming pool of the Blue Mountain facility. The initial conclusion of Blue Mountain was that the individual suffered a heart attack and died while swimming. It was later learned, however, that the individual drowned.
Blue Mountain never reported the death of its hotel guest to the Ministry of Labour. Blue Mountain concluded that its guest, who was not a worker in its employ, was involved in a non-work related activity at the time of his unfortunate demise. Indeed, the individual was swimming in the pool, a recreational activity unrelated to work. Blue Mountain also concluded that it did not have to report a death or, for that matter, any injury of a non-worker to the Ministry of Labour. Believing the injury occurred from natural causes (which belief was later found to be incorrect as the individual had not suffered a heart attack), Blue Mountain concluded that the indoor swimming pool was not a workplace.
The Ministry of Labour, however, concluded that pursuant to section 51 of the OHSA, Blue Mountain was obliged to notify an inspector of the death and to provide various reports mandated by the Act. The Ministry of Labour inspector issued an order against Blue Mountain for failing to comply with the Act.
OLRB Vice Chair D. Gee agreed with the Ministry of Labour’s position. First, it was found that the indoor swimming pool was a “workplace” even when no workers may be present. Considering the definition of “workplace”, being “any land, premises, location or thing at, upon, in, or near which a worker works”, it was concluded that this expansive definition should not be restricted to areas where workers are only present at the time of an injury or fatality. If a location has the character of being a workplace then, pursuant to the decision of the Vice Chair, it is always a workplace even if, for some periods of time, no workers may be present.
Referring to the wording of section 51 of the OHSA, the Vice Chair concluded that the obligation to report an injury or fatality to the Ministry of Labour applies other than simply for a “worker”. It was found that the section of the Act mandates such reporting where a “person” is killed or critically injured. The Vice Chair reasoned that the Ontario legislature meant to expand the scope of the reporting obligation beyond “workers” to include all “persons”. Blue Mountain, when it failed to report the fatality to the Ministry of Labour, was accordingly in breach of its reporting obligation. Thus the order issued against it by the inspector was upheld.
Discussion:
While section 51 uses the word “person” instead of “worker”, consider the intent and purpose of this particular Act: the OHSA, after all, concerns itself with workplace safety, for workers and contractors. The Act is enforced by inspectors who come from the Ministry of Labour which, again, is the Ministry tasked with issues involving workplaces.
The key legislative mandate and purpose of the OHSA is promoting and enhancing workplace safety, not safety in society generally. Thus, notwithstanding morally laudable goals (increasing safety in the workplace and beyond), this OLRB decision nevertheless over-reached the purported scope and ambit of the Act. There are other methods to enhance safety generally for all persons, instead of through the arguably “forced-fit” of the OHSA.
While Blue Mountain has pursued the OLRB decision to judicial review at the Divisional Court, ultimately, and despite my comments above, I believe that the attempt to overturn the decision will fail. I so conclude because occupational health and safety is clearly a societal goal of paramount importance; and the number of critical or fatal workplace injuries remain stubbornly high. Accordingly, a broad and purposive approach to the Act, and what the Act is intended to accomplish, will likely be accepted as a justifiable over-reach, even if arguably beyond the original intended ambit of the Act.
Another reason that the decision is likely to be upheld is that the peril which befell this hotel guest could have been the same peril to impact a worker in that workplace. Since the guest did not succumb to a heart attack but perhaps slipped and fell, which led to his drowning, a hotel worker might encounter the same hazard(s) in the course of duties at or near a swimming pool. As such, the resort arguably could have followed reporting obligations pursuant to section 51 and notified an inspector of the drowning. The inspector then would determine whether the Act applied to the resort in the particular circumstances involving the death of not a worker, but a hotel guest.
Moreover, the test at Divisional Court is not whether the OLRB decision was right or wrong. Rather, the question is whether the decision was “reasonable”. Given the specific wording of section 51, in my view the OLRB decision will likely be found to be reasonable. Certainly, it is a grey area. Yet considering the broad and expansive interpretation given by Courts and Tribunals to public-welfare Acts that are intended to enhance workplace safety and health, it is hard to argue that the decision is inherently unreasonable.
In that regard, consider the recent Ontario Court of Appeal decision in Ministry of Labour v. United Independent Operators Limited, released January 2011. After a purportedly independent trucker (who owned his own truck) suffered an accident at a customer’s location, the Ministry charged United, the purported employer, for failing to establish a joint health and safety committee (“committee”) pursuant to section 9(2)(a) of the OHSA, and ordered United to establish this committee.
United reasonably argued that it only had nine employees, not the 20 required for a committee to be established. United won before the Justice of the Peace and won again on first appeal to the Ontario Court of Justice. The Ministry appealed to the Court of Appeal. This Court found that even though United:
- owned none of the trucks,
- acted as a dispatching service,
- with the drivers owning their own equipment,
- with the drivers treated as self-employed for Canada Revenue Agency and other purposes, covering their own WSIB, etc.,
United was nevertheless their “employer” given the expansive definition of “employer” under the Act.
The Court of Appeal concluded that the drivers were “workers” (under the definition in the OHSA) who were “regularly employed” by United. Thus, they must be included in determining whether the employer met the threshold numbers which mandates the establishment of a committee. In the reasons for decision, the Court remarked upon the “objectives, purposes and legislative scheme of the Act”, and how committees are integral to promoting the objective of achieving a safe workplace. The Court further indicated that interpreting narrowly the definitions in the Act runs the risk of leaving outside the protection of the Act those workers in non-traditional workplaces, with non-traditional working arrangements. That “ends justify the means” analysis by the highest court in Ontario, I suggest, presages an ongoing broad and purposive approach to OHSA and, indeed, to other public welfare Acts.
Some smart practices in a critical injury or fatality:
Ontario employers involved in a critical injury or fatality should, after providing immediate medical help and calling for emergency services as appropriate, not disturb the scene of the accident except as required to render medical and other assistance to the injured persons. If employers are unsure whether reporting to the Ministry of Labour is mandated, contact your legal counsel.
If it is clear that the injury meets the threshold for notification (a critical injury or fatality), report promptly. Employers should also take careful note of all relevant facts pertaining to the accident, what led to it, and its aftermath. If possible, video-record the scene, and get contact information of witnesses as well of the individuals rendering medical aid.
While employers are obliged to cooperate with investigators from the Ministry of Labour, employers or their representatives should stay with the inspector to record what the inspector does and to note what documentation or information the inspector obtains. Employers should also conduct their own investigation. This would include speaking to witnesses to gather their observations of what transpired. In order to ensure legal privilege, employers should speak to their legal counsel to make sure that solicitor-client privilege arises with respect to the employers’ own investigation notes and documents.
Of course, the goal is avoid such critical injuries through pro-active safety processes (see my prior discussion paper on Bill 168, for example). Yet, while working to avoid the worst, it is best to be prepared, and to prepare your management team, to handle critical situations that may suddenly arise.
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