Does the Occupational Health and Safety Act (the “Act”) apply if a customer dies in your workplace? The Ontario Labour Relations Board (the “OLRB”) and the Divisional Court may say yes.
In December, 2007, a guest staying at Blue Mountain Resorts drowned in an unsupervised swimming pool. No workers were present and Blue Mountain did not notify the Ontario Ministry of Labour of the death. More than two months later, a Ministry of Labour inspector conducting a field visit at Blue Mountain Resorts learned of the drowning incident and issued an order under the Act that Blue Mountain report the death under section 51(1) of the Act.
Blue Mountain appealed the inspector’s order to the OLRB, arguing that the inspector’s decision was incorrect as the drowning incident did not involve a “worker” or “workplace”. The OLRB upheld the inspector’s decision and stated that the ordinary meaning of “person” as set out in section 51(1) of the Act is not synonymous with “worker”. Furthermore, the absence of a worker from a particular area does not render that area something other than a “workplace”. Blue Mountain’s application for judicial review was dismissed by the Divisional Court.
As a result, every place may be a “workplace”, and every injury or accident, whether or not involving a “worker”, may trigger the reporting obligations in section 51(1) of the Act. Reports to the Ministry of Labour may be regular given the nature of some workplaces, such as hospitals, nursing homes and workplaces in the infrastructure industry.
If you have any questions regarding the Occupational Health and Safety Act, the Davis employment team would be pleased to assist. Please contact any one of the authors of this Alert.