By Jeremy Warning and Cheryl A. Edwards
A skier suffers a broken arm while skiing. A student is knocked unconscious during a physical education class. A patient dies in hospital. Aside from being unfortunate events, incidents such as these are generally not seen as attracting an obligation to report the matter to health and safety authorities. This is no longer the case as a result of a recent OHS decision.
On May 18, 2011, the Ontario Divisional Court upheld an Ontario Labour Relations Board (OLRB) decision that determined that all fatal and critical injuries occurring at a workplace should be reported to the Ministry of Labour. The decision has the potential to significantly impact many Ontario employers and constructors, who are obligated to both report and preserve the scene of the injury as set out in the Occupational Health and Safety Act. The circumstances leading to the decision, its potential ramifications, and practical steps organizations may take to manage their obligations in such cases, are discussed below.
The incident and the order
Blue Mountain Resort Limited operates an inn, ski runs and other recreational facilities on a property of approximately 750 acres. The business employs 1,750 people in peak season. In December 2007, a patron drowned in an unsupervised indoor swimming pool. At the time, no Blue Mountain workers were in the pool area. Blue Mountain did not report the drowning to the Ministry of Labour because it did not involve a worker.
In March 2008, a Ministry of Labour inspector conducting a field visit learned of the drowning and issued an order under subsection 51(1) of the act. The subsection requires that:
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.
The order indicated that Blue Mountain had failed to notify an inspector of the “fatal injury to a person” and directed Blue Mountain to comply forthwith, based on the literal wording of this requirement.
The appeal: was a “worker” or “workplace” involved?
Blue Mountain appealed the order to the OLRB, alleging it was incorrect because the drowning incident did not involve a “worker” and/or did not occur in a “workplace.” Blue Mountain argued that an interpretation of subsection 51(1) that would require the reporting of injuries sustained by non-workers that occur at a location where no worker is present at the time of the injury is absurd. Blue Mountain asserted that the purpose of the act is to ensure the safety of workers, rather than persons or non-workers, and that the absence of workers from the location of the incident means the location is not a workplace as defined by the act. In taking this position, Blue Mountain argued that the word “person” in subsection 51(1) should be interpreted to mean “worker.”
The OLRB upheld the order. While the OLRB agreed that the purpose of the act is to protect workers, it did not agree that “person” means “worker” in subsection 51(1). In reaching this decision, the OLRB considered that the term “person” is not defined in the act, whereas “worker” has a specific defined meaning: “a person who performs work or supplies services for monetary compensation [...].” The OLRB held that a “worker” was a category of “person” and the terms were, therefore, not synonymous. Further the term “person” is broader than the definition of “worker” as it “is generally understood to refer to the broadest range of people.”1 The numerous provisions in the act where the term “person” is used establishes that “person” cannot be equated with “worker.” In the OLRB’s view, had the Legislature intended that employers report only accidents involving workers it would not have used the word “person” in subsection 51(1) of the act.
The OLRB also rejected the argument that, because no Blue Mountain workers were at the pool at the time of the incident, the indoor pool was not a “workplace.”2 The OLRB found that Blue Mountain was a fixed workplace; it is a fixed location to which employees regularly report. It had a defined area that consisted of the ski hill, buildings, parking lots and other areas, and that workers employed by Blue Mountain would perform work functions in all or parts of the defined area on a daily basis. The entire 750 acres of the Blue Mountain resort was found to be a “workplace” for the purposes of subsection 51(1). The absence of a worker from a particular location within the defined area did not mean the particular location ceased to be a “workplace.” Essentially, the OLRB held that, in a fixed work location like Blue Mountain, areas do not transition in and out of being a “workplace” based on the comings and goings of workers.
The OLRB also declined to interpret subsection 51(1) as only applying to injuries involving workers on policy grounds. It accepted the Ministry of Labour’s position that notification of all critical and fatal injuries to all persons is intended because workplace hazards that injure non-workers may also endanger workers.3
Judicial review upholds reporting obligation
Blue Mountain sought judicial review of the OLRB’s decision.4 The issues before the Divisional Court were largely the same as were before the OLRB: whether the word “person” in subsection 51(1) should be interpreted to mean “worker” and whether the “workplace” is defined by the physical presence of a worker.
In arriving at its decision, the Court concluded that the OLRB’s logic was transparent, intelligible and justified in light of the total context of the legislation’s purposes and the language used to implement those purposes. [...] Conditions and hazards that result in the death or critical injury of a non-worker have the potential to cause similar harm to workers. The reporting obligation serves to enhance the protection of workers by bringing hazards to the attention of the ministry whereas an absence of a reporting obligation would lead to a diminished oversight and potentially less worker safety.5
The Court agreed with the OLRB that the physical presence of a worker was not necessary to make a location a “workplace” for the purpose of subsection 51(1). The Court noted that the obligation to report a critical injury or fatality under subsection 51(1) is not entirely based on the timing of the incident but on the “causative nexus between prevailing conditions and the resulting harm.”6 The Court agreed that the ministry should be notified of these incidents because the cause may also place workers at risk.
That said, the Court took issue with the OLRB’s finding that the entire 750 acre property was a “workplace.” The Court held that this finding was unnecessary to resolve the appeal and that each case should be determined on its own merits. Yet, this divergence of opinion did not affect the outcome of the judicial review. The Court found that, notwithstanding the absence of a worker from the swimming pool area at the time of the accident, the area was a “workplace.” Consequently, the decision of the OLRB was not unreasonable and the application for judicial review was dismissed.
Blue Mountain Resort Limited is seeking leave to appeal the Divisional Court decision to the Ontario Court of Appeal. Watch for updates in future issues of HSO Network News.
Managing the implications for reporting and preserving the scene
a) Incident reporting. All businesses that provide services to the public at large or other non-workers (such as volunteers) may face the requirement to report fatal and critical consequences involving these persons. We note that subsection 51(1) does not even refer to a fatal or critical injury arising from an incident; rather, the reporting obligation arises if any person is injured from any cause the reporting obligation arises. Subsection 51(1) refers to prompt notification of a ministry inspector, as well as the joint health and safety committee representative and trade union, and then as a second requirement, a written report within 48 hours after the occurrence.
The potential impact on those operating in the retail, hospitality, public transit, education, and other service industries cannot be overstated. Municipal and provincial government bodies operating and maintaining facilities, parks, roads and infrastructure all stand to be significantly impacted. Hospitals, nursing and retirement homes, and provincial jails will now, apparently, have to report every fatality or critical injury occurring within their premises that involves a person such as a patient or inmate. One could reasonably expect that this decision will require almost constant reporting from some employers.
b) Preserving the scene of an incident. Subsection 51(2) requires that the scene of an injury not be disturbed, without the permission of an inspector, except to save life or relieve human suffering, maintain an essential public utility service or a public transportation system, or prevent unnecessary damage to equipment or other property. Blue Mountain had raised this concern before both the OLRB and Divisional Court, noting that it would be required to hold the scene of all incidents involving a critical injury or fatality until released by the ministry. Blue Mountain argued that the requirement to cordon off an incident scene could have a serious impact on their operations. However, the OLRB and the Court did not address this issue as it was not raised on the circumstances of the appeal – which was against an order to report the incident. Without any guidance on this obligation for incidents involving non-workers, employers and constructors must assume that the obligation applies in full, meaning that the scene of an injury will need to be held until released by a ministry inspector.
c) Suggested strategy. In light of the potentially onerous obligations placed on employers and constructors, and the potential consequences of failing to comply with them, short of an amendment to the act or its regulations or a clear policy directive on this matter from the ministry, prompt consideration must be given to managing this issue. All employers and constructors should have in place incident reporting policies, strategies and procedures. In light of the Blue Mountain decision, policies and procedures should be reviewed, and every employer and constructor should be prepared as follows:
Clearly state in incident reporting requirements circumstances in which notice and a written report must be given to the ministry, and be amended to reflect reporting where a “person” is killed or critically injured from any cause at a workplace. They should also state circumstances under which the scene should be preserved.
Ensure front-line supervisory personnel in workplaces know whom to notify in the event of a fatal or critical injury, and human resources and health and safety personnel have contact information for the ministry available in case notice and a report must be provided. Public and private sector organizations that stand to be significantly affected by the amendments should speak with a regular ministry contact to provide advance notice that increased notifications will be occurring as a result of the Blue Mountain decision.
For employers in a sector that will be significantly affected by ongoing incidents potentially giving rise to reporting, keep in mind that the Blue Mountain decision left the door open to a possible argument that a particular event or incident of fatal or critical injury has not occurred at a “workplace.” Incident reporting requirements should instruct human resources or OHS personnel to make immediate contact with a local inspector to inquire as to whether the ministry will require notice, a written report, and the preservation of the scene in circumstances where there may not clearly be a notice and reporting obligation. Inquiries of this nature could potentially be made in circumstances involving an incident that
does not involve an employee or contractor of the organization
does not arise out of the organization’s work or work-related activity
did not involve the organization’s equipment or vehicles
did not occur in a vehicle, building or area where an employee or contractor of the organization works
could not readily have happened to an employee or contractor of the organization.
In some instances in the past, the ministry has ruled, upon receiving a verbal notice, that they do not wish a formal notification or report, or the scene to be preserved, where they determine, from the verbal notice, that the matter does not involve a workplace or work-related issue. Such matters should, in the writers’ view, be left to the discretion of the ministry. If the ministry does not wish notice, a report or the scene to be preserved, record and retain the name of the ministry official who was contacted.
Keep standard letters and reporting forms available, to ensure that minimum statutory notification and written reporting requirements to the ministry, health and safety committee and trade union are met.
While these suggested strategies do not entirely eliminate the possibility that certain organizations will be inundating the ministry with telephone notifications and inquiries, they may help to create an organized, managed approach to the consequences occasioned by this interpretation of subsection 51(1).
Jeremy Warning is a Partner in Heenan Blaikie LLP’s Labour and Employment Group and a member of the firm’s national OHS & Workers’ Compensation Practice Group; firstname.lastname@example.org; 416-643-6946. Cheryl A. Edwards is a Partner in Heenan Blaikie LLP’s Labour and Employment Group and Lead in the firm’s national OHS & Workers’ Compensation Practice Group; email@example.com; 416-360-2897. Both Jeremy and Cheryl periodically offer sessions at Health & Safety Ontario Partners in Prevention conferences and trade show; most recently, the May 18 mock trial at the Mississauga event.
1. Blue Mountain Resorts Limited v. Ontario (Labour), 2009 CanLII 13609 at para. 69 (O.L.R.B.).
Defined in subsection 1(1) of the act to mean “any land, premises, location or thing at, upon, in or near which a worker works.”
“I accept the Ministry’s submission that, where workers are vulnerable to the same hazards and risks as non-workers who attend at a workplace, it is not an absurd result for an employer to be required to report when a nonworker suffers a critical injury at a workplace. If workers go in or near places where an incident has occurred resulting in a non-worker suffering a critical injury, the workers are equally at risk. The reporting of the nonworker injury serves to enable the Ministry to conduct an investigation and make orders or recommendations designed to enhance the protection of workers”. Blue Mountain Resorts Limited v. Ontario (Labour), supra at note 1, at para. 61.
There is no ability to appeal a decision of the OLRB. However, an application may be filed with the Divisional Court to have the decision reviewed by the court. A judicial review is different from an appeal as the court will generally focus on whether the OLRB had the authority to make the decision it did and whether it properly exercised that authority. The court will not consider whether it would have made the same decision but will look at whether the decision is reasonable in all of the circumstances.
Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board, 2011 ONSC 3057 at para. 17 (Ont. S.C.J. (Div. Ct.)).
Ibid. at para. 26.