Sometimes a Swimming Pool is Just a Swimming Pool: Ontario Court of Appeal Grants Blue Mountain Appeal


On February 7, 2013, the Ontario Court of Appeal handed down its highly anticipated decision in Blue Mountain Resorts Limited v. Ontario (Ministry of Labour and Ontario Labour Relations Board), 2013 ONCA 75. It found that Ontario’s Occupational Health and Safety Act (“OHSA”)1 does not require employers to report every fatal or critical injury to any person at a workplace. Rather, the OHSA only requires employers to report critical injuries or deaths that occur at a workplace which have a reasonable nexus to a realistic risk to worker safety.

Facts -

On Christmas Eve 2007, a guest of the Blue Mountain Resort drowned in the Resort’s unsupervised swimming pool. No workers were present at the time of the incident. Blue Mountain did not report the fatality to the Ministry of Labour. It reasoned that the incident did not involve a worker and had not occurred in a “workplace” per se, given that no employees of the Resort were present.

The following March, a Ministry of Labour Inspector conducting a routine visit to the Resort learned of the drowning and issued an order to Blue Mountain, citing it for failing to report the fatality under the OHSA. In making the order, the Inspector determined that subsection 51(1) required an employer to report critical injuries to both persons who were not workers, as well as workers. Section 51(1) OHSA states...

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