The death or critical injury of an employee at a workplace is a serious occurrence and, under the Occupational Health and Safety Act (“OHSA”), an employer has an obligation to report such an occurrence to the Ministry of Labour. While the death or critical injury of a non-employee, such as a customer or guest, at a workplace is an equally serious occurrence, there has been some debate as to whether an employer is under the same obligation to report the death or critical injury. Fortunately for employers, a recent decision of the Ontario Court of Appeal has clarified the obligations of employers under the OHSA when a non-worker dies or is critically injured at their place of business.
In Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, a guest at Blue Mountain Resorts died while swimming in a pool at the resort. The guest either died of a heart attack, or simply drowned while swimming. There were no Blue Mountain employees that were working at the pool at the time the death occurred. An inspector appointed by the Ministry determined that Blue Mountain was obligated to report the death to the Ministry under s. 51(1) of the OHSA. The inspector’s decision was upheld by the Ontario Labour Relations Board and the Divisional Court.
However, the Ontario Court of Appeal determined that Blue Mountain was not obligated to report the death to the Ministry. The Court of Appeal began by stating that the broad interpretation of s. 51(1) favoured by the Ministry would require an employer to report every incident in which a non-worker died or was critically injured “at or near a place where a worker is working, has passed through, or may at some other time work, regardless of the cause of the incident”. The Court of Appeal stated that this broad definition of “workplace” would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place".
The Court of Appeal concluded that the ramifications of this broad interpretation go far beyond what the Legislature could have intended, beyond what is reasonably necessary to give effect to the purpose of the OHSA, and beyond the mandate of the Ministry.
A major factor in the Court of Appeal’s analysis was that when s. 51(1) is triggered, s. 51(2) is also triggered. While s. 51(1) requires the reporting of deaths or critical injuries, s. 51(2) goes farther, and requires that the site of the injury be shut down until an inspector appointed by the Ministry releases the site to be reopened. Accordingly, under the broad interpretation of s. 51(1) and the application of s. 51(2), employers would be required to shut down workplaces whenever a guest or customer dies or is critically injured.
The Court of Appeal noted that the impact of the broad interpretation could be quite far-reaching. For example, as the Court of Appeal stated, whenever a player or a spectator received an injury at a Toronto Maple Leaf Hockey game, the game – whether televised or not – would have to be shut down until an inspector from the Ministry released the premises. Similarly, retail outlets like Canadian Tire, public highways patrolled by police (who are workers under the OHSA), and places of worship would all have to be shut down upon any death or critical injury, regardless of the cause, pending release by an inspector from the Ministry.
The Court of Appeal stated that this broad interpretation was unreasonable and went well beyond the proper reach of the OHSA and the role of the Ministry in advancing the important objective of protecting the health and safety or workers in the workplace. It is not the purpose or objective of the OHSA to protect non-workers. The OHSA’s focus is on workers and the hazards that workers should be protected from.
The Court of Appeal held that, given that the focus is on workers, s. 51(1) should be interpreted to require that an employer report the death or critical injury of a non-worker only where there is “some reasonable nexus” between the hazard that caused the injury of the non-worker and a realistic risk to worker safety. In other words, an employer’s obligation to report to the Ministry arises only where a hazard has potential to harm a worker.
On the facts of the present case, the Court of Appeal determined that there was no reasonable nexus between the injury and a risk to worker safety. As the Court of Appeal stated, it is highly unlikely that a Blue Mountain employee would drown while swimming in the pool in the course of his or her employment. The employer, therefore, was not obligated to report the death to the Ministry.
The Court of Appeal concluded its analysis by setting out specifically when an employer is required to report a death or critical injury in the workplace. An employer is obligated to report under s. 51(1) when:
- a worker or non-worker 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; 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.
While employers have other obligations and potential liabilities that arise from the death or serious injury of a non-worker at the employer’s workplace, these obligations and other liabilities are rightfully unrelated to the obligation to report under s. 51(1) of the OHSA.
Everyone hopes that the death or critical injury of non-workers and workers is a rare occurrence. However, when deaths or critical injuries do occur, employers must be aware of and comply with their obligations under the OHSA. The Blue Mountain Resorts Ltd. v. Bok case goes a long way towards clarifying those obligations.