Employers should update their Crisis Management procedures and related training because the Court of Appeal has ruled that any critical injury at a workplace, whether suffered by a customer, visitor, or another employee, may give rise to immediate reporting and evidence preservation obligations under the Occupational Health and Safety Act (the OHSA).
In Blue Mountain Resorts Limited v. Ontario (Labour) (Blue Mountain), the Court of Appeal established that employer accident reporting obligations under the OHSA are triggered when:
any person, not just a worker, but anyone, including a customer, is killed or critically injured;
there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety; and
the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work.
Next Steps for Employers
Review and update your Crisis Management procedures and reporting requirements in light of this case and make sure the right people are trained in these new developments.
Here are a few pointers.
First, make sure that your Crisis Management procedures and training clearly apply to both worker and non-worker deaths and critical injuries in the workplace. Any death or injury in the workplace, whether to a worker or non-worker, must be reported if there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace.
Second, be aware that the definition of “critical injury” is tricky; make sure that your procedures and training capture that expanded definition of critical injury which means “an injury of a serious nature that,
places life in jeopardy,
results in substantial loss of blood,
involves the fracture of a leg or arm but not a finger or toe,
involves the amputation of a leg, arm, hand or foot but not a finger or toe,
consists of burns to a major portion of the body, or
causes the loss of sight in an eye.”
Third, make sure that your procedures and training capture the broad definition of “workplace”. A workplace is defined under the OHSA as “any land, premises, location or thing at, upon, in or near which a worker works.” Under certain circumstances, a workplace may include third party locations. In Blue Mountain, the Court stated that “a workplace may not necessarily be a fixed location, but may in some circumstances travel with a worker.”
Fourth, make sure that your procedures and training capture the timeframe within which deaths and critical injuries need to be reported. Employers are required to notify a Ministry of Labour inspector of critical injuries and deaths immediately by telephone or other direct means, and to send the Ministry a written report of the circumstances of the occurrence within forty-eight hours after the occurrence.
Fifth, make sure that your procedures and training instruct employees, in the event of a death or critical injury, not to “interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector”, unless necessary to:
save life or relieve human suffering;
maintain an essential public utility service or a public transportation system; or
prevent unnecessary damage to equipment or other property.
Remember that breaches of the OHSA can result in fines of up to $500,000 to the corporate employer.
Backgrounder on the Blue Mountain Case
A guest at Blue Mountain drowned in a swimming pool at the resort. The pool was unsupervised and intended for recreational use by guests. A Ministry of Labour inspector issued two Orders against Blue Mountain for its failure to notify an inspector of the fatality. In particular, Blue Mountain was found to have violated Section 51(1) of the OHSA, which requires immediate notification to the Ministry of Labour “where a person is killed or critically injured from any cause at a workplace.”
Both the Ontario Labour Relations Board and Divisional Court agreed with the inspector that the accident should have been reported based on a literal reading of the legislation.
But the Court of Appeal disagreed with the inspector, finding that such a literal reading of the section would lead to the “absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.” To address this absurdity, it chose to read down the phrase “from any cause” in section 51(1). It held that the phrase should be read to only require reporting when there is “some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the site of the incident”. On the basis of this narrow reading of “from any cause”, the Court allowed the appeal because there was no evidence that the guest’s death was caused by a hazard that would also affect worker safety.
At this time, the Ministry has not decided whether it will appeal the decision.
If you have any questions regarding compliance with the Occupational Health and Safety Act, or if you would like assistance preparing or revising your Crisis Management rules and procedures, please contact Colin Kelly, Jason Hanson, Jim Hassell or any other member of the Osler Employment & Labour Department. A revamping of these procedures can also be part of a broader based half or full day employment compliance audit.