Divisional Court Ruling Expands Employers’ Accident Reporting Obligation under the Occupational Health and Safety Act (OHSA)
11 August, 2011
HOW DOES THIS RULING IMPACT YOUR REPORTING
OBLIGATIONS TO THE MOL?
The Divisional Court has held that the OHSA requires that employers must report any critical injury or fatality that occurs in the workplace even if it is a non-worker who is injured. In essence, this ruling extends an employer’s reporting obligation beyond workers to members of the public when the incident arises from potential hazards or risks to employees.
The ruling arose from a December 2007 incident when a guest drowned in an unsupervised swimming pool at Blue Mountain Resorts. In March 2008 a MOL safety inspector visited the Resort and learned of this death and issued an order that the death be reported to the MOL as per section 51(1) of the OHSA which imposes an obligation on an employer to notify an inspector “where a person is killed or critically injured from any cause at a workplace…”
Blue Mountain appealed the order to the Ontario Labour Relations Board (OLRB). In our review, the essence of Blue Mountain Resorts argument was that an interpretation of subsection 51(1) would require the reporting of injuries to non-workers that occur at a location where no worker is present at the time of injury is absurd. Further, it was argued that the purpose of the OHSA is to ensure the safety of workers, rather than the public or non-workers, and that the absence of workers from the location of the accident defined the location as not a workplace under OHSA.
The OLRB upheld the MOL order reasoning that it did not agree that “person” means “worker” in subsection 51(1) of the OHSA. The OLRB considered that the term “person” is not defined in the OHSA, whereas “worker” has a specific meaning as defined in subsection 1(1) of the OHSA. The decision held that a “worker” was a category of “person” and the terms were therefore not synonymous.
The OLRB decision further stated, in part;
“…had the legislature intended to restrict the section 51 reporting obligation to instances where a “worker” suffered a critical injury, the legislature could easily have used the word “worker”…
The OLRB also rejected the argument that, because no Blue Mountain workers were at the pool at the time of the accident, the indoor pool was not a workplace. Rather, the OLRB concluded that the pool was a fixed location to which employees regularly report. As such, the entire 750 acres were found to be a “workplace”.
The OLRB did accept the MOL’s position that reporting obligations of critical and fatal injuries to all persons was necessary when workers are vulnerable to the hazard underlying an incident.
Blue Mountain appealed to the Divisional Court in which two fundamental questions were raised. 1) does the word “person” in Section 51(1) mean “worker”; and 2) was the unsupervised swimming pool a “workplace” for the purposes of the OHSA.
The rational for the ruling is lengthy, and it is not this writer’s intension here to provide the reader with a detailed rational. It is sufficient to say that the Divisional Court upheld the OLRB decision citing that it agreed that the MOL should be notified of accidents because the cause of the accident may also place workers at risk.
At this time, it is unknown if Blue Mountain Resorts is appealing this decision. However, this court ruling has the potential to open up a Pandora’s Box, and may impact Industrial establishments and Construction sectors.
Consider an invited guest who trips over a pallet at your workplace sustaining a critical injury. Consider a condominium tenant occupying their unit on a partially completed building who sustains a critical injury. Consider a housing developer who completes a Notice of Project (NOP) for large acres in which a member of the public obtains permission to cut trees and sustains a critical injury. Further, consider the logistics in controlling and preserving the scene as required under subsection 51(2).
This ruling, in our opinion has created further confusion and a greater onus on employer’s which can have significant costly implications.
Although each case is looked at individually and on its own merit, we are encouraging employers to report such injuries to the MOL and to educate frontline supervisors and staff. Should the MOL call centre indicate that the incident is not reportable, we strongly recommend documenting the conversation. When calling, it is suggested to use a cellular telephone as calls are documented in summary statements and provide a means of proof of the call.
For further information please contact Greg Sathmary at 613-260-0600.