BEYOND ESTABLISHED BORDERS
by Dan Birch
Representatives for a popular vacation resort in Ontario plan to again appeal a directive for the business to notify the Ministry of Labour (MOL) of all critical injury and fatality incidents involving non-workers.
“It’s the absurdity of the whole thing,” says Alvin Weatherall, vice-president of operations at Blue Mountain Resort. So, for the third time, the company hopes to argue its interpretation of Section 51 of Ontario’s Occupational Health and Safety Act.
The section states that if a person is killed or critically injured from any cause at a workplace, the constructor (if any) and employer must notify an MOL inspector and any other workplace parties, secure the scene until cleared by an inspector and send the MOL a written report within 48 hours.
Blue Mountain – the operator of a 750-acre recreational resort near Collingwood, Ontario – was chastised for not reporting a 2007 drowning of a guest in an unsupervised pool.
Ministry inspector Richard Den Bok learned of the death during a field visit the following March, Justice Wailan Low, writing for the Ontario Divisional Court, notes in a May 18 ruling. The inspector then issued an order for the resort to notify the MOL.
In line with an earlier ruling by the Ontario Labour Relations Board (OLRB), the court found that Blue Mountain was obliged to report the guest’s death, dismissing the resort’s contention that the swimming pool was not a workplace, per se.
Blue Mountain argued that its facilities “are both recreational premises and a workplace and the use may change depending on the circumstances,” notes the ruling. The resort submitted that a guest could be injured or killed in circumstances that do not pose a risk to a worker.
Justice Low disagreed. “Had the swimmer been critically injured by a structural fault in the pool area, it could hardly be argued that the circumstances ought not to attract the attention of the ministry.”
Weatherall counters that the guest was apparently exercising underwater, adding that he could not envision a work-related duty where a worker would be similarly engaged.
Whenever a guest has been involved in a serious incident that could also have affected a worker, Weatherall says Blue Mountain has been quick to notify the ministry.
But MOL staff had earlier argued before the OLRB that the cause of the guest’s death was not initially known. “It could have been caused by any number of hazards, such as being overcome by chemical fumes, that any employee entering the area would also be exposed to,” the ruling adds.
Justice Low notes another question up for debate before the OLRB was the meaning of “person” in Section 51, which is not defined. In line with the board’s findings, the judge writes that the word “is to be construed in its ordinary meaning and not as synonymous with the word, ‘worker.'”
The latest ruling could have implications for many Ontario workplaces. “There is likely to be a tremendous volume of notifications from employers in health care, entertainment, municipal, retail and other service sectors for incidents occurring at all hours,” says Jeremy Warning, a lawyer with Heenan Blaikie LLP in Toronto.
The duty to notify the MOL when a hazard that caused an incident also presents an oh&s risk is not seen as “burdensome for employers,” says MOL spokesperson Matt Blajer.
Norm Keith, a partner with Gowlings LLP in Toronto, says it is disappointing that the court “took a rather narrow, literal interpretive approach” to Section 51. The purpose is “occupational health and safety, not public health and safety,” Keith emphasizes, noting that reporting non-worker incidents with no connection to worker safety is a waste of MOL resources.
Warning suggests that “without some guidance from the MOL in terms of a practical and expeditious means for reporting incidents and obtaining authorization to release the scene, employers may see significant and even daily disruptions to their operations.”
Blajer says the MOL is “currently considering how best to inform and guide employers regarding their duty to report.”
Den Bok testified before the OLRB that the majority of ski accident scenes are released by an inspector over the phone, a fact that Keith finds questionable. “I’m not sure how you investigate without actually attending,” he says.
The ruling raises the prospect of employer due diligence, Warning says. “If a non-worker is injured in a workplace as a result of a violation of the OH&S Act or its regulations that could have exposed a worker to the same risk, the employer will have to demonstrate due diligence,” he says.
Not surprisingly, reporting requirements related to non-worker fatalities and critical injuries vary across the country. Employers under the Canada Labour Code need not report such incidents to the federal regulator, says a spokesperson for Human Resources and Skills Development Canada in Gatineau, Quebec.
For its part, Nova Scotia’s reporting duties are similar to Ontario’s, says Kevin Finch, communications advisor for the Department of Labour and Advanced Education in Halifax. “The rationale is that something that poses a risk to a customer also poses a risk to an employee,” Finch says.