On February 7, 2013, the Ontario Court of Appeal released its decision in Blue Mountain Resorts Limited v. Ontario (Labour),1 overturning the order of the Ministry of Labour Inspector that the resort had failed to report the drowning death of a guest pursuant to their obligation under subsection 51(1) of the Occupational Health and Safety Act (the "Act") because it was "a death or critical injury incurred by a person at a workplace".

The Ontario Labour Relations Board and Divisional Court agreed with the inspector, finding that the swimming pool was a "workplace" because some employees of Blue Mountain must have been present in the pool area at some other time to perform maintenance.

The issue on appeal was whether Blue Mountain was required to report the guest injury to the Ministry of Labour pursuant to their obligations under subsection 51(1) of the Act. The Court of Appeal held that the lower courts' interpretation of the Act would lead to absurd results, as it had the effect of making 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. As a result, every critical injury or "death to anyone, anywhere, whatever the cause, must be reported."

The Court of Appeal rejected this reasoning, and provided the following framework for when an employer's duty to report pursuant to subsection 51(1) of the Act will be engaged:

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").

Applying this criteria, the Court of Appeal held that, in the circumstances, Blue Mountain did not have a duty to report the guest's death to the Ministry of Labour because "[t]here was no evidence that the guest's death was caused by any hazard that could affect the safety of a worker, whether present or passing through." The inspector's order against Blue Mountain was therefore set aside.

In the wise words of the Court of Appeal, "sometimes a swimming pool is just a swimming pool."

The full text of the decision can be accessed here.

Footnote

1 2013 ONCA 75

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