The Ontario Court of Appeal has overturned a lower court decision requiring an employer, Blue Mountain Resorts, to report the death of a non-worker on its premises to the Ministry of Labour (MOL). In doing so the Appeal Court has defined the scope of the workplace in ways that may have implications for other health and safety activities, such as workplace inspections.
The Ontario Divisional Court had convicted Blue Mountain Resorts of failing to comply with section 51(1) of the Occupational Health and Safety Act
, because the resort did not report a drowning in the resort’s pool to the MOL. Section 51(1) of the Act
requires that “where a person is killed or critically injured from any cause at a workplace” the employer is required to immediately report the incident to the MOL. Sections 52(1), which sets out reporting requirements for accidents with less severe injuries, only takes effect when a worker is injured.
The Appeal Court agreed with the lower court that the legislature had intended to use “person” rather than “worker” in section 51(1), because it would give a wider scope to reporting of deaths and more serious injuries. However, the Appeal Court held the pool in which the drowning occurred, although it was maintained by resort employees and was part of the resort property, was not a workplace at the time of the death. Because the death did not happen in the workplace, the obligation to report under section 51(1) “was not engaged.” The Act
defines a workplace as “any land, premises, location or thing at, upon, in or near which a worker works.”
The Appeal Court stated that defining a workplace as wherever a worker works “at some point in time” would lead to absurd results. If such a position was taken, argued the court, almost every fatality and critical injury would have to be reported to the MOL because almost all of Ontario is a workplace at some point in time. In place of a fixed view about the scope of the workplace, the Court adopted an interpretation with a changing scope, based upon the actual or possible presence of workers. The court noted this interpretation was similar to the established view that a location not owned by the employer (such as a private vehicle, a patient’s home or a customer’s location) is a workplace if a worker works at it.
The Appeal Court held there must be “some reasonable nexus (connection) between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site” for it to be considered a workplace incident. The court held “a workplace is where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or (ii) where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work.” Since no worker was near the pool at the time of the drowning, nor would a worker be reasonably expected to be working in at the pool, it was not part of the workplace, at least at the time of the incident.
The decision raises questions about the meaning of “workplace” in other situations and with respect to other activities. For example, had the death been caused by a fall into the pool rather than a drowning, would the court have found it to have occurred in a workplace because workers were sometimes present on the pool deck? And does the scope of workplace inspections only include areas in which workers might reasonably be expected to carry out duties? What if hazards in non-work areas could pose a risk to workers?
To assist WHSC training participants in understanding when a death or critical injury of a non-worker is a workplace incident that must be reported, instructors should ask participants to consider the hazard giving rise to the incident and determine whether it poses a risk to worker health and safety. Where the hazard causing the incident did, or might, impact workers, the incident will need to be reported. Making a decision may be assisted by asking the following questions:
Was a worker carrying out duties near where the non-worker was killed or critically injured?
Might a worker be reasonably expected to carry out duties near where the non-worker was killed or critically injured?
Any death or critical injury in the workplace must be immediately reported to the MOL, union and joint committee or health and safety representative. A written report must be forwarded to the MOL within 48 hours.
To download a copy of the full decision log into the member instructor area
. You will find it in the Tools and Resources