ONCA Overturns the Blue Mountain Case

The Blue Mountain case, which was previously summarized by Yosie when the Divisional Court decision was released, was overturned earlier this month by the Ontario Court of Appeal.

Justice Blair held that the OLRB and Divisional Court interpretation of s. 51(1) of the Occupational Health and Safety Act, which requires reporting of workplace injuries and deaths, would render virtually every place in Ontario a “workplace,” simply because a worker may at some time be present. 

The intervenors, Conservation Ontario and Tourism Industry Association of Ontario, had argued that an end-risks analysis without a reasonable connection between a risk to worker safety and a workplace incident leads to an unreasonable interpretation of the statute. The provisions under the Act are focused on hazards or risks that can potentially harm workers, and requires a potential nexus with worker safety for the reporting requirements to be applicable.

Although public welfare legislation often uses very broad and general terms in order to promote public safety in a wide variety of circumstances, this does not allow for an interpretation of these provisions without reasonable limits. Justice Blair invoked the statutory rule against absurdity, citing Rizzo & Rizzo Shoes Ltd. (Re)Ontario v. Canadian Pacific Ltd., and Boma Manufacturing Ltd. v. Canadian Imperial Bank of CommerceThe consideration of hypothetical situations can be useful in demonstrating the absurdity of a particular interpretation.

Although the OLRB is an expert tribunal which deserves special deference on a standard of reasonableness, this interpretation does not fall within the definition of reasonableness as described in Dunsmuir v. New Brunswick,

[47] …In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[emphasis added]

Justice Blair listed a number of hypothetical scenarios where this interpretation would create absurd results, including parents who would have to report to the Ministry because a nanny was injured. The reporting requirements require that an injury site be shut down, which could even result in the Air Canada Centre being closed in the middle of a live broadcast during a Toronto Maple Leafs game just because a hockey player was injured. Virtually every place in the Province would be subject to these requirements.

Instead, he summarized at para. 59 what the appropriate situations of where the Act should apply:

  • a worker or non-worker (“any person”) is killed or critically injured;
  • 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,
  • 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”).
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Comments

  1. The court’s hypothetical regarding the nanny isn’t quite as you’ve set out above. The “absurd” hypothetical was of a parent having to report to the ministry of labour that their child had had been injured (their home being a workplace because they have a nanny). If a nanny (an employee) is injured, the hypothetical is not absurd.

    I get the sense that the government witnesses would have been happy if every single death in the province was under their jurisdiction and the court correctly said “no”.