A few months ago I wrote about The Blue Mountain Resort case, see full article. To summarize, the Ontario Labour Relations Board (“OLRB”) concluded that Blue Mountain breached its reporting obligations under the Ontario Occupational Health & Safety Act (“OHSA”) when the resort failed to report the death of not a worker, but a hotel guest who drowned in the hotel swimming pool. Blue Mountain argued that, as the death involved not a worker, the reporting obligation under the OHSA did not arise. The OLRB ruled otherwise, finding that section 51 of the OHSA mandates the reporting of a critical injury or fatality to the Ministry of Labour for all “persons”.
Blue Mountain sought judicial review of this decision but, as I also had predicted, the decision of the OLRB was upheld by the Ontario Divisional Court in a recent decision. The Divisional Court confirmed the OLRB finding that the swimming pool was a workplace, and also observed that "any event resulting in death or critical injury, even ...having no potential nexus with worker safety, is reportable so long as they occur in the workplace." There is thus no doubt regarding employer reporting obligations, as this case now stands. |
It is unclear if Blue Mountain will attempt to seek leave to the Court of Appeal. On many levels this decision, requiring employers to report all such incidents to the Ministry of Labour, casting such a broad net, may prove unworkable in practice—not for employers but for the Ministry. It may be that the volume of reporting, given employers necessarily will report all such incidents, and will likely err on the side of caution when reporting less serious injuries out of an abundance of caution, could “swamp” the Ministry—burying it in reports and thus distracting from the genuine need to investigate actual accidents in the workplace involving workers.
Investigating genuine work accidents, after all, is what some of us believe was the initial intent and purpose of the OHSA before it got expanded out of all proportionality. My prediction is that, however, even if the Court of Appeal hears this case, the original OLRB decision will be confirmed given that, as discussed in more detail in the original article, the Court of Appeal has recently taken a very broad (overly so, in my respectful opinion) and purposive approach to the OHSA.
Stay tuned for further developments.
Click here for Part 1
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