Many Ontario employers will be relieved by an Ontario appeal decision that clarifies – and limits – the obligation to report workplace accidents to the Ontario Ministry of Labour. “[I]t is not part of the purpose and objective of the Act to protect non-workers.”
A guest’s swimming pool death did not require an Ontario resort to file a Notice of Accident with the Ontario Ministry of Labour, the Ontario Court of Appeal ruled, overturning a lower court decision that risked dramatically expanding some employers’ accident reporting obligations.
In 2007, the guest had drowned in an indoor swimming pool at the resort. No Blue Mountain employees were working at the pool at the time. A Ministry of Labour inspector ordered Blue Mountain to report the accident to the MOL. The inspector’s decision was upheld by the Ontario Labour Relations Board and the Ontario Divisional Court.
Section 51 Notice of Accident
The Occupational Health and Safety Act‘s accident-notification provision, subsection 51(1), states:
51(1) 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 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. [underlining added]
The MOL argued that “person” means any person, not just employees, so that employers must report any death or critical injury of any person – including guests or visitors – in a workplace.
The Court of Appeal disagreed, noting that the MOL’s interpretation would have the absurd result that it would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place. This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.” For instance, there was evidence that there were approximately 7,000 accidents every year at Ontario ski resorts, many of which – on the MOL’s interpretation – would need to be reported to the MOL even if no employee was involved.
When to file MOL Notice of Accident: 3 Factors
The Court of Appeal decided that an employer must file with the MOL a Notice of Accident where the following three requirements are met:
“a) a worker or non-worker (“any person”) is killed or critically injured;
b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and
c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).”
The third factor – a reasonable nexus between the safety hazard that caused the accident and a risk to worker safety – is the key factor arising from this decision. It means that an injury to a non-worker in a workplace will not require the filing of a Notice of Accident if it does not reveal a worker-safety risk.
Result: No Requirement to Report This Guest’s Death
The court said that here, there was no evidence that the 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. As such, the third factor was not satisfied, and the resort was not obligated to report the accident to the Ministry of Labour.
Implications for Workplace Violence Policies
The court’s clarification of the meaning of “workplace” is also relevant to employer’s workplace violence policies and programs. Employers’ workplace violence obligations will extend to a place where “(i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”.
This is an important and readable decision that human resource and health and safety managers should read.
Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)