On May 18, 2011, the Divisional Court upheld a decision of the Ontario Labour Relations Board (“OLRB”) requiring employers to report critical injuries that occur at the workplace to the Ministry of Labour (“MOL”) even if the person who suffered the critical injury was not a worker.
The facts of this decision are unfortunate and arise from the accidental drowning of a guest of a Resort (the “Employer”) in an unsupervised swimming pool located at the Employer’s premises. A MOL Inspector issued an order that the Employer failed to notify the MOL of this incident as required by the Ontario Occupational Health and Safety Act (“OHSA”). At the hearing before the OLRB, the Employer maintained that it was not required to notify the MOL as the incident did not involve a worker and/or did not occur at a workplace.
The OLRB ruled that the requirement to notify the MOL of critical injuries at the workplace is not limited to critical injuries suffered by workers. Also, the Board held that the entire property of the Employer was considered the “workplace”. The Employer applied to Divisional Court to judicially review the OLRB’s decision.
The Divisional Court upheld the OLRB’s decision but took a different view on the definition of “workplace”. In essence, the Court stated that a workplace is a place where a worker would be vulnerable to the same hazards as the members of the public instead of focusing on the entire property of the Employer. The fact that an employee is not physically present within an area of the “workplace” does not mean that that particular area is not part of the “workplace” during the period when no employees are present. The Court stated:
“Workers and guests are vulnerable to the same hazards. The purpose and intent of the legislation would be undermined if a physical hazard with potential to harm workers and non-workers alike was not subject to reporting and oversight.”
This decision creates ambiguity on what is considered a “workplace” as it is now dependent on the facts of each critical injury suffered by a member of the public and whether there is a connection between the critical injury and worker safety. This is especially true for employers whose workplaces are accessible by the public or employers with workers that work in the public domain.
Accordingly, the employer is required to inform the MOL of critical injuries, not only of workers but of any other individual who may be present at the “workplace”. According to the OHSA, a critical injury:
Based on this decision, employers will have to carefully consider whether or not to report an accident to the MOL in situations involving a critical injury to a non-worker.
If you have any questions about the implications of this decision or other questions pertaining to Occupational Health and Safety inspections and prosecutions, please do not hesitate to contact a Mathews Dinsdale lawyer.