The Divisional Court of Ontario has issued a “heads up” to employers with respect to their duty to report to the Ministry of Labour when there has been a death or critical injury at the workplace. In essence, the Court has concluded that all fatal and critical injuries to a person, whether a worker or not, at a workplace must be reported to the Ministry of Labour.
On Christmas Eve 2007, a guest, staying at the Blue Mountain Resort, drowned in the resort’s swimming pool. Believing it had no obligation to do so, since the victim was not a worker, the resort did not report the death to the Ministry of Labour. Several months later during a field visit, the Ministry’s inspector made an order against the resort for failing to notify an inspector of the fatal injury and ordered it to do so forthwith. The inspector’s order was upheld by both the Ontario Labour Board and the Divisional Court. The impact of this decision could have significant consequences for employers.
The relevant sections of the Occupational Health and Safety Act are as follows:
s. 51. (1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.
The Act does not provide a definition of “person.”
Section 1 states that a workplace means any land, premises, location or thing at, upon, in or near which a worker works.
The Divisional Court agreed with the Labour Board that the word person in s. 51(1) of the Act is to be construed in its ordinary meaning and not as synonymous with the word worker. The effect is to give person a very broad meaning.
With respect to the word workplace, the Labour Board concluded that all 750 acres of the resort was a workplace for the purposes of section 51(1) of the Act. The Board stated that the fact that an employee is not physically present within a section of that workplace does not mean that that particular section is not part of the workplace during the period when no employees are present. While the Divisional Court did not agree that the entire 750 acre resort could be considered the workplace (the Court did state that each case must be determined on its own facts), it did agree that in these circumstances, the swimming pool was a workplace since it was a place where one or more workers work. Further, the absence of a worker at the swimming pool premises at the time of the death did not diminish the fact that it was a workplace.
The ripple effect of this decision could be quite significant, particularly for the service industry and government bodies that operate parks and roads. Although the court did state that each case must be determined on its own facts, it would seem that organizations such as hospitals and nursing homes may have to report every fatality or critical injury occurring within their facilities. The potentially more onerous obligation for employers is outlined in section 51(2) of the Act, which requires the preservation of the scene of the occurrence.
s. 51(2) Where a person is killed or is critically injured at a workplace, no person shall, except for the purpose of, (a) saving life or relieving human suffering; (b) maintaining an essential public utility service or a public transportation system; or
(c) preventing unnecessary damage to equipment or other property, interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector.
According to Ministry of Labour spokesman Matt Blajer, “An employer is required to notify the ministry if a non-worker is critically injured or killed at a workplace if the hazard that caused the incident also presents a risk to the health and safety of workers at that workplace. This is a reasonable expectation and should not be burdensome for employers.”
Unless and until the government makes changes to the wording of the Occupational Health and Safety Act, employers would be wise to review and if necessary develop a reporting policy. At the least, such a policy should include the circumstances in which notice and a written report must be given to the Ministry and the circumstances where the scene should be preserved. In addition, employers should consider erring on the side of caution and report all injuries, whether the injured party is a worker or non-worker. Howard Steinberg and Craig Colraine practice Employment Law. They would be pleased to assist you in developing such a policy.Share