Ontario civil | Employment
OCCUPATIONAL HEALTH AND SAFETY
Just because accident occurred where worker may be, it does not become workplace accident
Applicant operated resort that comprised ski runs, inn and recreational facilities. Guest at applicant’s premises drowned in unsupervised swimming pool. Applicant did not notify inspector of occurrence pursuant to s. 51(1) of Occupational Health and Safety Act (Ont.), since person who drowned was not worker. Respondent, in capacity as inspector, made order pursuant to s. 51(1) of Act. Ontario Labour Relations Board upheld inspector’s order, concluding “person” not synonymous with “worker” and finding that area where employees performed work functions was “workplace” and fact employee not physically present did not mean that particular section not part of workplace. Board found that drowning of guest triggered reporting obligation under s. 51(1), as it involved “person” who was killed from any cause at “workplace”. Application for judicial review dismissed but appeal allowed and order to report set aside. While language “where a person is . . . critically injured from any cause at a workplace” in s. 51(1) undoubtedly intended to capture wide range of injury-related occurrences affecting safety and wellbeing of workers and public welfare legislation to be interpreted liberally, limitless interpretation not appropriate. Interpretation given by board and Divisional Court to language of s. 51(1) extended reach of legislation far beyond what was intended or needed to give effect to purposes of legislation. Just because accident occurred at place where worker may be at some point in time, accident does not become workplace accident. Broad language may be given restrictive interpretation in order to avoid absurdity. Board’s conclusion, founded on what was, in effect, entirely location-based analysis, did not fall within range of possible, acceptable outcomes. Intrusive effect of s. 51(2), which requires injury site to be preserved until released by inspector, combined with overly broad interpretation of reporting requirements of s. 51(1), has potential to give Ministry and inspectors significantly intrusive powers beyond what is reasonably required to accomplish purpose of preserving and promoting worker safety. Section 51(1) not engaged unless some reasonable nexus between hazard giving rise to injury and realistic risk to worker safety at site of incident. Workplace is where worker carrying out employment duties at time incident occurs or might reasonably be expected to be carrying out such duties in ordinary course. No evidence guest’s death in pool caused by any hazard that could affect safety of worker.
Blue Mountain Resorts Ltd. v. Bok (Feb. 7, 2013, Ont. C.A., Blair, MacPherson and Armstrong JJ.A., File No. C54427) Decision at 335 D.L.R. (4th) 483, 202 A.C.W.S. (3d) 303 was reversed. 223 A.C.W.S. (3d) 967.
