Camping In Ontario Update Newsletter June 2019 March 2013 | Page 12

CAMPING IN ONTARIO UPDATE | 12

Sometimes a Swimming Pool is Just a Swimming Pool
Blue Mountain Wins Appeal

Section 51(1) of the act states:

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, 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.

On February 7, 2013, the Court of Appeal for
Ontario handed down its highly anticipated decision
in Blue Mountain Resorts Limited v. Ontario (Ministry of Labour and Ontario Labour Relations Board ),
2013 ONCA 75. It found that Ontario’s OccuOlrb and Previous Court Rulings
pational Health and Safety Act does not require
The resort appealed the order to the Ontario Labour Relations Board.
employers to report every fatal or critical injury to
The board upheld the order, concurring with the Ministry of Labour’s
any person at a workplace. Rather, the act requires
submission that the act requires reporting of all critical injuries and
fatalities to any “person” in a “workplace.”
employers to report only critical injuries or deaths
Importantly, the resort had argued before the board that if reporting
that occur at a workplace and that have a reasonable of critical injuries or fatalities to all persons was required, it would also
nexus to a realistic risk to worker safety. Read on to
be required to preserve the accident scene which would create tremendous disruption to the resort. The board declined to comment on that
learn more about the case, as well as suggested best
argument because, in its view, the order cited the resort only for failing
practices for employers and constructors.
to report the fatality.

Facts
On Christmas Eve 2007, a guest of the resort
drowned in an unsupervised swimming pool.
No workers were present at the time. Blue Mountain
did not report the fatality to the Ministry of Labour.
It reasoned that the incident did not involve a worker and had not occurred in a “workplace” per se,
given that no employees of the resort were present.
The following March, a Ministry of Labour inspector
conducting a routine visit to the resort learned of the
drowning and issued an order, citing the resort for
failing to report the fatality under the act. In making
the order, the inspector determined that subsection
51(1) required an employer to report critical injuries to both persons who were not workers, as well as
workers.

Blue Mountain had the board’s decision judicially reviewed. On
review, Ontario’s Divisional Court found the board’s decision to be reasonable. Both the board and Divisional Court concluded that, because
the act refers to both “workers” and “persons” in various provisions,
the legislature must not have intended them to be synonymous. The
Divisional Court also reasoned that hazards resulting in injuries to
non-workers or “persons” could also affect workers, meaning it was
within the powers of the Ministry of Labour to investigate to determine
if there was a risk to the health and safety of workers.

Appeal Court Rules: Reporting Must Have Nexus to
Worker Safety
Five parties participated in the hearing before the Court of Appeal for
Ontario: Blue Mountain Resort, the Ministry of Labour, the Ontario
Labour Relations Board, and intervenors Conservation Ontario and
the Tourism Industry Association of Ontario (“Tourism Ontario”).
The resort, Conservation Ontario and Tourism Ontario all asserted
that the board’s interpretation of the statute had significant practical
implications for employers (with just about every “place” in Ontario
being a “workplace” for purposes of the act). The ministry argued that,
in keeping with the strict and clear wording of the act, all fatal or critical injuries in Ontario workplaces ought to be reported, and that it was
the ministry’s role as regulator to determine which incidents ought to
be investigated. The Court of Appeal rejected the ministry’s position.
The Court of Appeal succinctly set out its findings, writing: