Ontario health and safety decision on accident reporting requirements means the definition of a workplace could be pretty broad
By Jeffrey R. Smith
Health and safety is a big issue for employers and rightfully so. Ensuring workers can go about their business and perform their job duties without worrying about getting hurt — or worse — is better for their health and well-being.
And from an employer’s standpoint, a worker who feels safe and stays healthy is probably going to be more productive. So when there’s an incident in a workplace that causes injury or death, employers are usually required by law to report it so the labour authority in their jurisdiction can investigate and ensure steps are taken to avoid it happening again.
If no workers are around when an accident actually happens, is it a workplace-related injury? If it happens in an area where other people, not just workers, have access, is that strictly a workplace? If it happens to someone who isn’t a worker and isn’t performing work, is that a workplace accident?
Employers should take note that, according to the Ontario Labour Relations Board (OLRB) and the Divisional Court of the Ontario Superior Court of Justice, the answer to the above questions is yes.
Last month, the court released a decision supporting the OLRB regarding the December 2007 drowning of a guest at Blue Mountain Resorts near Collingwood, Ont. The drowning happened in a swimming pool at the resort and there were no resort employees present. Three months later, a Ministry of Labour inspector found out about the drowning and ordered Blue Mountain to report it under Ontario’s Occupational Health and Safety Act (OHSA), which requires employers to report to the ministry when a “person is killed or critically injured from any cause at a workplace.” The OLRB upheld the order.
Blue Mountain argued the guest wasn’t a worker governed under OHSA and the pool wasn’t a workplace, as nobody was working there at the time. However, the court disagreed, saying hazards were hazards regardless of who was endangered. It also found any place where workers performed work should be considered a workplace, even if no workers were there at the time.
After this decision, it looks like the definition of a workplace could be pretty broad, at least in Ontario, which may be particularly troubling for businesses that interact with the public like resorts and others in the tourism industry. How much should employers be responsible for? If a skier at a resort slides into a tree, should the employer remove all trees because they could potentially hurt all “persons” using the ski hill, whether employees or customers? Should that accident be reported as an accident in the workplace? Isn’t there a difference between someone choosing to use a facility at her own risk and the expectation of employees for the employer to ensure a safe workplace?
Safety for all is important, but where is the line between focusing on workplace safety and overall public safety? Should occupational health and safety legislation cross that line? When it comes to employers who deal with the public, where does the workplace begin and end?
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at [email protected]. For more information, visit www.employmentlawtoday.com.
