Ontario Superior Court of Justice has recently upheld an Ontario Labour Relations Board (OLRB) decision stating that injuries to guests must be reported to the Ministry of Labour. Find out what this ruling means for the Ontario resort and tourism industry.

What does this mean going forward?

Employers need to be aware of their duty to report under the OHSA. After Blue, employers now have a duty to report any deaths or critical injuries to the Ministry of Labour for all people, not just employees. They also have a duty to preserve the accident scene until they get clearance from the Ministry.

Facts on how this came about

In Blue Mountain v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board), the Applicant Blue Mountain (“Blue”), was a company which operated a resort which consisted of ski runs, an inn and other recreational facilities. On December 24, 2007, a guest of the hotel drowned in an unsupervised swimming pool on the resort. An immense controversy erupted as to the meaning of the words “person,” “workplace” and an employer’s duty to report injuries under section 51(1) of the Occupational Health and Safety Act (“OHSA”).

Section 51(1) states that “Where a person is killed or critically injured from any cause at a workplace . . . the employer shall notify an inspector, and the committee, health and safety representative and trade union . . . .”

Background on the ruling

After the incident, an inspector was dispatched to the scene. The inspector found that under section 51(1) of the OHSA, a “person” included a guest, and that a “workplace” included the unsupervised pool. Therefore, Blue had a duty under the OHSA to report the guest’s death to the Ministry of Labour, which they didn’t do. On Appeal to the OLRB, the board looked at the legislative context and the purposes of the OHSA and concluded that “person” was to be construed in its ordinary meaning, and was not synonymous with “worker.” The OLRB also concluded that the swimming pool was a “workplace” for the purposes of the act. Therefore, Blue had breached its duty under the OHSA.

Comparing this case to the Edwards case, it’s not easy to see how the Court determined that “person” under the OHSA included a guest of the hotel. In Edwards, the court enunciated the living tree doctrine and looked to legislative context to determine that women were in fact equal to men. It made sense, men and women are both human beings under the constitution, and therefore they should both be “persons” for the purposes of legislation. In this case, the legislative context is much narrower. In fact, it is centered on the Occupational Health and Safety context, and area of law that was created to protect workers in the workplace. Puzzlingly, Blue did not challenge the Board’s determination as to the word “person” on judicial review, but an intervener, Conservation Ontario, did challenge the Board’s conclusion.

The Board also determined that “workplace” included all 750 acres of Blue’s resort. The main problem, as asserted by Blue, is that section 51(2) requires the reporter to preserve the scene of the accident. This would require Blue to block off access to ski hills every-time a patron was injured, which happens regularly. Not only would this impede Blue’s business, but it would also create hazards for other skiers who now have to avoid these blocked off areas of the hill. On review, the Court defended the Board’s determination by looking elsewhere in the act and concluding that the legislature intended to cast a “wide net.”

Ultimately, the Court held that the Board’s decision was reasonable, but the Court did not necessarily agree that all 750 acres of Blue’s resort was included under the word “workplace” for purposes of the OHSA. The Court noted that the board’s definition extended further then was necessary for the purposes of this appeal.

History

In 1930, the word “person” was catapulted into infamy in Canada. During that year, a group of five women took an extremely important issue all the way to the Privy Council, which at that time was the highest court in Canada. The case was entitled Edwards v. Canada. At the time, women were not viewed as “persons” under the law. These “Famous Five” women successfully argued that women were in fact “persons” under the law, and they won. Fast-forward 81 years and there is again controversy centered on the word “person.”

Pradeep Chand is a Partner at Brauti Thorning Zibarras LLP