• Death of a Guest Not a Workplace Safety Matter
  • February 20, 2013 | Author: Christopher McHardy
  • Law Firm: McCarthy Tétrault LLP - Vancouver Office
  • Thank goodness! The ruling that an accidental drowning death of a guest at a resort had to be reported by the resort owner under occupational health and safety law in Ontario as if it was a death or critical injury occurring at a workplace has been overturned. The Ontario Court of Appeal is to be congratulated on injecting some much needed common sense.

    Seldom do we quote at length from a judgment, but when a court says something simply, succinctly and with evident good sense, it deserves recognition. Here is what the court said:

    [4] For the reasons that follow, I would set aside the decisions of the Divisional Court and the Board. The interpretations they gave to s. 51(1) of the Act would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a “workplace” because a worker may, at some time, be at that place. This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. Such an interpretation goes well beyond the proper reach of the Act and the reviewing role of the Ministry reasonably necessary to advance the admittedly important objective of protecting the health and safety of workers in the workplace. It is therefore unreasonable and cannot stand.

    [5] In my view, a proper interpretation of the Act requires that there 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. There is no such nexus here.

    [6] Sometimes a swimming pool is just a swimming pool.

    Another quote from the court is justified to show just how absurd was the original decision. The court noted that if such an incident had to be reported, then the site would have to be shut down under the legislation for investigation. The court noted the consequences in a few examples:

    [41] Mr. Den Bok acknowledged that if there were a critical injury to a hockey player or a spectator during a Toronto Maple Leaf hockey game at the Air Canada Centre, it would have to be reported to the Ministry. If the injury occurred on the ice, the hockey game would have to be shut down - televised or not - until the premises were released by a Ministry inspector. He took the same position with respect to a wide variety of other circumstances. For instance, he took the view that reporting to the Ministry would be mandatory in the case of customer injuries at a Canadian Tire Store or other retail outlet; in the case of injuries sustained by the public on highways patrolled by police (because the police or other workers may arrive after the accident, or may have passed by on a prior occasion); and in the case of worshippers who may suffer a heart attack or other critical injury at a religious institution (whether the services would have to be halted pending Ministry release of the place of worship, was left unsaid).

    Thanks to the Ontario Court of Appeal for stopping this nonsense before it could infect the thinking at other occupational health and safety agencies in Canada.