As a result of Blue Mountain Resorts Ltd. v. Bok, injuries sustained by guests while on an employer’s premises do not turn every inch of those premises into a “worksite” for the purposes of the Occupational Health and Safety Act (“the Act”).
Blue Mountain Resort Limited owns and operates an all-season resort and recreational facility offering 36 downhill ski runs and other recreational facilities including mountain biking trails, a golf course, and an indoor swimming pool. On December 24th, 2007 a guest drowned while swimming in an unattended indoor pool. Blue Mountain did not report this death to the Ministry of Labour. It took the view that employers are not required to report the deaths or critical injuries of guests. However, a Ministry of Labour inspector took the opposite position and issued several orders to that effect.
Blue Mountain sought to have the orders quashed at the Ontario Labour Relations Board. The Board upheld the orders, however, agreeing with the inspector that the swimming pool is part of the worksite, as workers are invariably in the pool at some point for its maintenance. Blue Mountain applied to the Divisional Court for judicial review of the Board’s ruling. The Divisional Court upheld the orders on the same basis.
At the Ontario Court of Appeal, Blue Mountain was successful. The Court decided that in order to engage section 51(1) of the Act there must be a reasonable nexus between the hazard giving rise to injury and the realistic risk to worker safety at the workplace. This nexus requires a physical hazard with the potential to harm workers and non-workers alike. The fact that an accident has occurred at a place where a worker may be at some point in time is insufficient to trigger the operation of section 51(1).
While the Court affirmed that it will continue to give remedial legislation such as the Act broad application, in this situation it would have been overly broad to engage section 51(1) when there was no reasonable connection between what actually happened and a risk to worker safety at the site. To engage the Act where “guest injuries” occur would turn the entirety of Ontario into a workplace and require every employer to report every death or critical injury sustained by anyone in any capacity, whatever the cause.
This ruling serves to clarify the application of section 51(1) of the Act, and acts as a reminder to employers that they must report a deaths and critical injuries, but only if they are caused by a hazard that is inherent in the workplace, and is potentially harmful to workers.