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"Sometimes a Swimming Pool is just a Swimming Pool"

David Elmaleh
David Elmaleh
Partner

March 2013

by David Elmaleh, Partner

First posted in the Toronto Law Journal

On February 7, 2013, the Court of Appeal for Ontario released its decision
in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75. This
case involved the unfortunate death of a guest while swimming in an
unattended indoor pool at Blue Mountain Resorts on Christmas Eve,
2007.

The primary issue on appeal was whether Blue Mountain was required to report the death to the Ministry of Labour on the basis that it was a "death or critical injury incurred by a person at a workplace". Blue Mountain took the position that it was not required to report the death because the recreational facility, particularly the swimming pool, was not predominantly a workplace and a worker was not present at the site when the death occurred. In contrast, the respondent, an inspector under the Occupational Health and Safety Act (the "OHSA"), took the position that reporting the death was required under the OHSA.

Section 51(1) provides that where a person is killed or critically injured from any cause at a workplace, the employer, inter alia, shall immediately notify an inspector of the occurrence and send a written report of the circumstances within 48 hours.

The inspector under the OHSA issued an order that Blue Mountain was required to report, along with related orders. The Ontario Labour Relations Board upheld the order.

The Divisional Court subsequently dismissed Blue Mountain's application for judicial review, finding that the Board's determination that the swimming pool was a "workplace" was reasonable. The Board's decision turned on an inference drawn that the employees of Blue Mountain must have been present at other times in the pool area in order to check and maintain it. By the same token, the Divisional Court found it to be common ground that the swimming pool was "a place where one or more workers work."

However, the Court of Appeal set aside the decisions of the Divisional Court and the Board, noting that such a broad interpretation of the OHSA would make virtually every place in the province of Ontario a "workplace", including any and all commercial, industrial, private or domestic places because at some point, a worker may be at that place. The Court of Appeal concluded that such an interpretation was absurd and would lead to the conclusion that every death or critical injury to anyone, anywhere, would have to be reported.

Consequently, the Court of Appeal interpreted the OHSA as requiring that there must be some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site. There was no such nexus in the case at bar.

This case is significant, not only for those practicing employment law or those who advise employers of best practice risk-management strategies, but for all workplace parties across the province. This case is a pronunciation by high judicial authority that not all sites where workers may attend are considered "workplaces" under the OHSA which require reporting of death or critical injuries. Rather, a reasonable nexus must exist between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the site of the incident.

The OHSA's main purpose is to protect workers from health and safety hazards while on the job. It sets out the duties of various workplace parties (employers, supervisors, etc.), establishes procedures for dealing with workplace hazards, and contains enforcement provisions in the event compliance is not voluntarily achieved.

However, this case confirms that the reporting requirements under the OHSA are not engaged every time there is a critical injury or death occuring at a place where a worker might reasonably be expected to carry out certain duties in the ordinary course of his or her work.

As the Court noted at paragraph 6 of this decision, "sometimes a swimming pool is just a swimming pool".


 

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