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September 1, 2011

The Divisional Court expands health and safety reporting obligations

Author Malcolm MacKillop

The obligation to report serious workplace injuries to the Ministry of Labour (“MOL”) is an important requirement of the Occupational Health and Safety Act (“OHSA”). Section 51 of the OHSA requires that where a “person” is killed or critically injured from any cause at a workplace, the employer must: (1) report the incident immediately to an MOL Inspector and to other workplace parties; (2) file a written report of the circumstances of the incident with the MOL within 48 hours; and (3) preserve the scene of the incident.

For many years it was believed that these reporting obligations only applied when workers were killed or critically injured. In the recent case Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board), 2011 ONSC 3057, the Divisional Court made it clear that that an employer’s reporting obligations may be triggered where a non-worker, such as a customer or other member of the public, suffers serious injury or death.


In December 2007, a guest at Blue Mountain Resort (“Blue Mountain”) drowned in a swimming pool. There were no workers present at the time of the drowning. Blue Mountain did not report the incident to the MOL.

During an unrelated field visit in March 2008, an MOL Inspector learned about the drowning. The Inspector concluded that a “person” included a guest and that a “workplace” included the unsupervised swimming pool and ordered Blue Mountain to comply with the OHSA by reporting the incident.

Blue Mountain appealed the order to the Ontario Labour Relations Board (the “Board”). The Board agreed with the Inspector that the term “person” includes all persons and is not restricted to workers. The Board also held that not only was the swimming pool a “workplace” but that all 750 acres of the resort were a workplace under the OHSA.

The Divisional Court’s Decision

The Divisional Court upheld the Board’s broad definition of the term “person” on the basis that hazards that result in the death or critical injury of a non-worker also have the potential to cause similar harm to workers. Requiring employers to report the injuries of all persons therefore enhances the protection of workers by bringing such hazards to the attention of the MOL.

With respect to the definition of a “workplace”, Blue Mountain argued that the swimming pool did not qualify as a “workplace” within the meaning of the OHSA because a worker was not physically present at the time of the drowning. The Court rejected Blue Mountain’s argument on the basis that “The purposes and intents of the legislation would be undermined if a physical hazard with potential to harm workers and non-workers alike was not subject to reporting and oversight.”

Blue Mountain also raised concerns regarding the impact of the Board’s finding that the whole of Blue Mountain’s 750 acre resort constitutes a “workplace”. Blue Mountain is a popular resort where thousands of people visit each year and take part in diverse activities such as swimming, skiing, and mountain biking. Blue Mountain argued that if the entire resort is a “workplace”, it would be required to report injuries to the MOL that were completely unrelated to worker health and safety, such as broken legs suffered by guests while skiing, and would also be required to “preserve the scene” where such accidents occurred, which would be highly disruptive to its business. The Divisional Court agreed that it was not reasonable for the Board to conclude that the entire Blue Mountain Resort constituted a “workplace”. Blue Mountain’s ownership of the entire resort’s property was not sufficient to make it a “workplace” under OHSA. The Court said that each case must be assessed on its own facts. On the facts of this case, the swimming pool did constitute a “workplace” because Blue Mountain employees regularly worked in the swimming pool area to clean the pool and check the water.

Impact on Employers

The Divisional Court’s decision affects all employers with premises that are open or accessible to members of the public. Based on the Court’s decision, an incident on an employer’s property that results in a critical injury or fatality to a member of the public will trigger reporting obligations under OHSA if (1) the location of the incident is a place where employees regularly work, and (2) the hazard could potentially harm workers.

In the wake of the Court’s decision, the cautious approach will be to notify the MOL of any critical injury or death to a non-worker. In addition, employers must be sensitive to the requirement to preserve the scene of a critical injury or death until an MOL Inspector arrives.

When notifying the MOL, employers should clearly explain the circumstances of the incident, the cause of the critical injury or death, and should ask the MOL whether they will be investigating the incident and whether the employer must preserve the scene of the incident. Finally, employers should be aware that failure to comply with the notification and preservation obligations under section 51 of OHSA can result in a fine of up to $500,000 for a corporation, or a fine of up to $25,000 and/or imprisonment for up to 12 months for an individual.

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