Ontario Court of Appeal Clarifies, Muddles OH&S Definition of "Workplace"
The Ontario Court of Appeal this week clarified and narrowed the definition of "workplace" under the Occupational Health and Safety Act. At the same time, the reasons in the case may result in even more uncertainty about when an accident or injury to a person who is not a worker must be reported.
The facts of Blue Mountain Resorts Ltd. v. Ontario are relatively simple - at a ski resort, a guest died of a heart attack in an indoor pool. The Ontario government took the position that the pool, being a place where workers covered by the Act worked from time to time, was a "workplace" and that the resort was required to report the death to the Ministry of Labour.
The resort's position, supported by the Court of Appeal, was that if an indoor pool was indeed a workplace because workers may, from time to time, be around that pool, then every location within the province was in fact a workplace and every accident or injury in the province must be reported. For example, the court noted that if the government's position were adopted, every accident taking place on provincial roads would have to be reported to the Department of Labour (and the accident scene preserved) because workers, including police officers, use the highways.
Said the Court of Appeal,
Would parents have to report to the ministry if their child were injured at home because they had hired a nanny? Because hotel employees enter guest rooms, does a hotel room become a "workplace" when a guest dies of a heart attack or a drug overdose or is murdered?
The Court of Appeal ruled, accordingly, that the indoor pool was not a workplace for the purpose of reporting deaths or injuries. The court noted that the purpose of the legislation is "intended to guarantee a minimum level of protection for the health and safety of workers." The government's interpretation extended the reach of the legislation far beyond what was intended by the legislature and gave the Ministry of Labour jurisdiction far beyond what was needed to carry out the purposes of the Act. In order for a death or injury to be reported, there would have to be "some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site."
While the outcome of the case seems rational, the result also leaves doubt for the future about whether the Act will apply in particular circumstances. Where a person who is a worker suffers a death or injury, the location of that death or injury would seem to be a workplace and the duty to report engaged.
Where a person who is not a worker suffers a death or injury, however, the question of whether or not the duty to report is engaged would seem to require consideration of whether there is "reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site." This flexible definition of workplace, the idea that a particular site might be a workplace in some cases and not a workplace in other cases depending on the cause of the injury and consideration of the risk causing the injury, is likely to lead to further confusion about whether an injury or death must be reported.