When will it end? Many of our clients are becoming increasingly frustrated with the imposition of onerous statutory obligations. And now the Ontario Divisional Court has added another to the pile.
Ontario’s Occupational Health and Safety Act requires that a critical injury, which includes a fatality or a risk of fatality, a loss of consciousness, substantial blood loss, the fracture of a leg or arm, amputation of a leg, arm or foot, burns to a major portion of the body, or loss of sight in an eye, must be reported immediately to the Ministry of Labour. The site of the injury must not be altered or interfered with until a Ministry inspector has completed an inspection. Employers are (or should be!) aware of this requirement as part of their obligation to protect workers.
However, in 2007, a guest drowned in a swimming pool at Blue Mountain Resort. A Ministry of Labour inspector took the position that the incident constituted a critical injury which should have been reported to the Ministry, despite the fact that the victim was a guest of the resort, not an employee. When it reviewed the Ministry’s decision, the Ontario Labour Relations Board agreed. On judicial review to the Divisional Court, the Divisional Court agreed with the OLRB, finding that because the injury occurred in a workplace, the Ministry of Labour should have been advised, as hazards in the workplace are presumed to put workers at risk.
This means that when a business owner has a customer/client/guest suffer a critical injury on the business premises, the Ministry of Labour must be notified and the site must be preserved until the inspector releases it. Imagine the disruptions on ski hills now that trails will presumably have to be closed every time a skier breaks a bone or loses consciousness after a fall!
Every business owner must now consider its obligations under the OHSA in the event of a critical injury on the premises. The application of the OHSA has in the past been focussed on responsibilities between employers and employees (many would say correctly), so the Divisional Court’s decision to expand that application is unsettling, to say the least. Some senior practitioners have been anonymously quoted as calling the decision simply unworkable, but there’s no indication yet that it will be appealed.