A customer is hit by a car in your parking lot and is severely injured. You call 911 and a fire truck and ambulance arrive on the scene. A police officer also interviews all witnesses. This makes sense – the customer needs medical attention and the police have to investigate the incident. Surely your obligations stop there. You weren’t the customer’s employer so there’s nothing left to do.
A recent decision in Ontario – Blue Mountain Resorts Limited v. Ontario (Labour), 2009 CanLII 13609 (ON L.R.B.) – suggests that your obligations might not stop there. In fact, you might have to report the critical injury to the occupational health and safety authorities – even though the accident didn’t involve a worker. How can this be? Isn’t occupational health and safety law restricted to just that – occupational situations? The answer, at least for the time being in one Canadian province, is “no.”
Blue Mountain’s saga
On Christmas Eve in 2007, a guest of Blue Mountain Resorts drowned in one of the resort’s swimming pools. Because the guest was not a worker of the resort, Blue Mountain didn’t report the death to the Ministry of Labour, the entity charged with administering Ontario’s Occupational Health and Safety Act.
Notwithstanding that no worker died, a Ministry of Labour inspector issued an order to Blue Mountain to report the death and to provide related reports. The resort appealed the order to the Ontario Labour Relations Board.
The appeal
On appeal, Blue Mountain argued that there should be no reporting requirement because no worker died and the incident didn’t involve a workplace.
The Ministry of Labour agreed that no worker was involved but argued that the occupational health and safety law should be given a broad and liberal interpretation to apply to “persons” at a workplace, not just “workers.” The Ministry argued that this made sense because workers are vulnerable to the same risks as nonworkers who are present at a workplace.
The Labour Board bought the Ministry of Labour’s argument and concluded in March 2009 that employers are required to report a critical injury or death suffered by a nonworker to the Ministry of Labour if the critical injury or death occurs at a place where workers work. This obligation to report applies even if a worker isn’t present when the critical injury or death occurs.
The Labour Board based its decision on the reporting section of the Occupational Health and Safety Act that isn’t limited to workers:
Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector . . . immediately of the occurrence . . . and the employer shall, within 48 hours after the occurrence, send to the Director a written report of the circumstances of the occurrence.
The Labour Board rationalized its decision as follows:
. . . where workers are vulnerable to the same hazards and risks as nonworkers who attend a workplace, it is not an absurd result for an employer to be required to report when a non-worker suffers a critical injury at a workplace. …
If the goal is to enhance worker safety by alerting the Ministry to hazards in the workplace that could affect workers, a provision that requires the reporting of critical injuries suffered by non-workers in places where workers work, regardless of whether a worker was present at the time and place of the critical injury, is not absurd.
Implications
I suspect that most of you would disagree – such a finding is indeed absurd. Requiring employers to report critical injuries or deaths involving nonworkers isn’t what occupational health and safety was designed to do.
And the decision has far-reaching implications for employers. It could mean that anytime anyone, worker or not, dies or is critically injured at or near a work site, the employer is required to involve the Ministry of Labour. Once the Ministry of Labour is involved, it could make all sorts of orders against the employer. That customer who was critically injured in your parking lot could spur the Ministry of Labour to close down your parking lot. And that worker who dies in your hospital? The Ministry of Labour could close the relevant area for any length of time.
The decision is all the more frightening given the similarities that exist in occupational health and safety laws across Canada. If the Ontario Ministry of Labour takes this position, what’s to stop the government authorities from British Columbia to Newfoundland from doing the same thing? And what about the authorities in the United States? Presumably the same thing could happen there.
One also wonders if the Ministry of Labour has thought this through. Does it really want to be contacted every time someone dies or is critically injured near a workplace? Surely the increase in workload would be staggering.
So the next time a passer-by slips and falls on your sidewalk, you might have more to worry about than a potential slip-and-fall lawsuit. You may have to involve the Ministry of Labour and may be subject to prosecution under occupational health and safety laws.
Contact the author, Karen Sargeant
