“Where a person is killed or critically injured from any cause at a workplace”, section 51(1) of the Occupational Health and Safety Act obligates employers to immediately report the incident to the Ministry of Labour.

In May 2011, a decision of the Ontario Divisional Court upheld a ruling of the Ontario Labour Relations Board, that greatly expanded employers’ reporting obligations under section 51(1).  The Divisional Court agreed with the OLRB’s interpretation of “person” to mean both workers and members of the public;  “any cause” to mean natural causes and other occurrences having no nexus to workers’ safety, and “workplace” as a place where a worker is working, has passed through, or may at some time work.

Prior to the OLRB’s decision in the first instance, section 51(1) of the OHSA had generally been understood as requiring employers to only report injuries to employees or workers.

The decisions of the OLRB and the Divisional Court arose from an order of a Ministry of Labour inspector who found that Blue Mountain Resorts should have reported the accidental drowning death of a guest who was swimming at an unattended pool on the resort’s property.

Recently, the Ontario Court of Appeal disagreed with the Divisional Court’s expansive definition of s. 51(1) provided and overturned its decision, calling the Divisional Court’s interpretation of 51(1) overbroad and the corresponding outcome absurd.  Indeed, the Divisional Court’s interpretation of 51(1) would have made virtually every place in Ontario a “workplace” because a worker may, at some point, be at that place.  The result of such an interpretation would mean that every fatality or critical injury sustained by anyone, wherever the location and whatever the cause, would have to be reported under the OHSA.

To resolve the absurdity, the Court of Appeal adopted the following interpretation of section 51(1) as follows:

  1. A worker or non-worker (“any person”) is killed or critically injured;
  2. 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 (“workplace”); and
  3. There is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).

This interpretation provides some relief for employers by confirming that the reporting obligations do not extend to all critical injuries or fatalities.  However, the Court of Appeal’s interpretation did not restrict the scope of the reporting obligation as much as Blue Mountain would have liked.  Blue Mountain had sought to have the term “workplace” restricted to places where a worker is actually present at the scene of the incident, and the word “person” to exclude non-workers.

Given the Court’s interpretation of the word “person”, it may not always be easy to determine whether an employer has an obligation to report a critical injury or fatality to a non-worker.  Injuries the befall non-workers may not always have a nexus to worker safety, but it may be difficult for some employers to make that assessment.   As a result, every injury to a non-worker should still be assessed carefully using the Court of Appeal’s criteria above to determine whether the reporting obligation under section 51(1) is engaged.  When in doubt, it may be prudent to err on the side of caution and report the incident to the Ministry of Labour.