Wednesday, February 13, 2013

"Sometimes a swimming pool is just a swimming pool" - Blue Mountain wins OHSA appeal

Nearly two years ago, I posted about a Divisional Court decision which concluded that Blue Mountain Resorts Limited was obligated to report to the Ministry of Labour after a guest died in an unsupervised swimming pool.

The consequences of that were expansive:  Anytime there is any critical injury or death in any place where anybody is employed - that is, pretty much everywhere - the employer is obligated to report to the Ministry of Labour, and to preserve the injury site (ceasing operations) until an investigation is completed.

Blue Mountain appealed, arguing that this was an unreasonable interpretation of the Occupational Health and Safety Act.  In an average February, Blue Mountain has 16,000 visitors on a Saturday and 10,000 on Sunday, and they have a below-industry-average ski incident rate of 1.5 per thousand visitors.  So, 39 incidents on an average weekend in February, which may require the slopes to be shut down until the Ministry investigates and clears the employer to reopen.

The Court of Appeal allowed their appeal, finding that such an expansive view of the OHSA is unreasonable, capturing incidents with no connection to the objectives of the Act.  According to the Court of Appeal, the reporting obligation is only triggered where:

  1. a worker or non-worker is killed or critically injured;
  2. the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work; and
  3. there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace.

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

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