Reporting of Critical Injury or Fatality of a Non-Worker: The Blue Mountain Case

A guest drowns in the hotel pool. Does the hotel need to report the fatality to the Ontario Ministry of Labour under subsection 51(1) of the Occupational Health and Safety Act? According to a decision by the Ontario Labour Relations Board (OLRB), the answer is “yes”. On May 18, 2011, the Divisional Court of the Ontario Superior Court of Justice upheld the OLRB decision that injuries to guests must be reported to the Ministry of Labour. As a result, the obligation to report may extend to non-work injuries or fatalities, and also to guests and customers of a business.

Facts of the case

Ontario Ministry of Labour (MOL) inspector Richard Den Bok made several orders against Blue Mountain Resorts Limited after a guest drowned in an unsupervised swimming pool at the Blue Mountain Inn resort. The inspector ordered the resort to comply with section 51(1) of the OHSA:

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. (Emphasis added.)

Further, Section 51(2) prohibits any person from “interfering with, disturbing, and destroying” or carrying away anything connected to the scene of the occurrence without permission of the inspector.

The employer did not notify an inspector of the occurrence pursuant to s. 51(1) of the Act and did not send to the director a written report of the circumstances of the occurrence. The employer believed that, because the person who drowned was not a worker, the provisions of s. 51(1) of the Act did not apply to them.

Den Bok concluded that under the provision, the guest who drowned qualified as a “person”, and the unsupervised swimming pool qualified as a “workplace”. As a result, the inspector made the order that, “The employer failed to notify an inspector of the fatal injury to a person which occurred at the Blue Mountain Inn on December 24, 2007. Comply forthwith.”

While s. 51(1) is normally understood to necessitate reporting of injured workers, the Ontario Labour Relations Board decision says that injuries to non-workers must be reported to the Ministry of Labour in some cases. The OLRB found that it is indeed a reasonable request to report any injury where “workers are vulnerable to the same hazards and risks as non-workers who attend at a workplace”.

Blue Mountain appealed, arguing that the resort is both a place of work and a recreational facility where “critical injuries” such as fractures are “an expected and not-infrequent by-product” of skiing; thus it would be unreasonable to report every critical injury or death of a customer. The employer also expressed concerns about the requirement to preserve the scene of a critical injury due to the potential to seriously disrupt its operations.

Blue Mountain also questioned whether the unsupervised swimming pool in which the guest drowned was a workplace within the meaning of the Act. The employer argued for an interpretation of “workplace” that requires the “physical presence of a worker at a place where a worker works at the time at which an occurrence with a guest or other person takes place.”

Blue Mountain further argued that by implementing this requirement, the MOL “will have expanded its reach to realms of activity that are completely unrelated to worker health and safety.”

The Ontario Superior Court of Justice reviewed the decision and agreed with the labour relations board.

The OHSA states that a workplace is “any land, premises, location or thing at, upon, in or near which a worker works” and, most importantly, does not require the physical presence of a worker. The Court noted that what constitutes a workplace depends on the facts of each individual case, but in the case of Blue Mountain it determine that all of Blue Mountain’s 750 acres, including the ski hills, condominiums and stores, constituted a workplace.
The Court upheld the OLRB’s decision that non-worker injures are reportable as reasonable.

The Court also said, in a rather narrow and literal interpretation of section 51(2) that “on a plain reading of the subsection, any event resulting in death or critical injury, even if occurring in circumstances having no potential nexus with workers’ safety, is reportable so long as they occur at a workplace.”
For these reasons, the absence of a worker at the swimming pool premises at the time of the occurrence did not diminish the fact that it was indeed a workplace. The Court found the board’s decision reasonable, which satisfied the standard of review of reasonableness. The Court upheld the decision and dismissed the application.

Impact of this decision

This decision has significant implications for many workplaces in Ontario because it effectively turns every place into a potential “workplace” and triggers employer accident reporting obligations under the OHSA when non-worker accidents occur.

Employers in almost all workplaces will have to report the critical injuries or deaths that occur at their workplace, whether it is a worker, customer or any other individual that is present.

With every critical injury or incident to a person in a workplace, employers must assess and investigate the hazards that caused the critical injury to occur, the context in which the injury took place and whether there is a potential connection with worker safety. They will also have to preserve the scene where the incident occurred until authorized by the MOL, which could affect the operations of their company.

Further, any incident could result in a ministry investigation and/or order requiring the employer to make safety improvements to that site.

To clarify, under Reg. 834, s.1 of the Act, a critical injury includes an injury of a serious nature that places life in jeopardy, produces unconsciousness, results in substantial loss of blood, involves the fracture of an arm or a leg, but not a finger or toe, involves the amputation of a leg, arm, hand or foot but not a finger or toe, consists of burns to a major portion of the body and causes the loss of sight in an eye.

I hope the Ministry of Labour is ready to handle the increasing amounts of calls they will be getting because of this decision. It’s difficult to tell if this is a case of an overly broad regulation or appropriately narrow interpretation. If the decision is to be followed, it will likely lead to significantly more work for both the government and business, and cause unpredictable and indeterminate interruptions for businesses. Surely it would be helpful for the Labour Relations Board to justify the need for such a demanding regulation, particularly if interpretation and enforcement haven’t been overbearing until now.