Ontario Court Of Appeal Rules 'Sometimes A Swimming Pool Is Just A Swimming Pool'

The Ontario Court of Appeal recently released its decision in Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75, overturning a Divisional Court decision (2011 ONSC 3057) on the duties of employers and contractors under the Occupational Health and Safety Act (OHSA) to report a death or a "critical injury" to the Ministry of Labour (Ministry). Our previous bulletin on the onerous requirements on employers resulting from the Divisional Court decision can be found here.

In this case, a guest of Blue Mountain Resorts drowned in the resort swimming pool. The Divisional Court ruled that the resort swimming pool was a "workplace," under the definition in OHSA,and that employers are required to report all deaths and critical injuries occurring at a workplace and to preserve the scene of the occurrence, regardless of whether: (a) the injured individuals are workers; or (b) the incidents involve hazards that impact workers.

The Court of Appeal ruled that requiring employers to contact the Ministry and to preserve the site of every critical injury or death at a workplace, regardless of cause or if the person involved was a worker, was an absurd interpretation of the legislation. In order to give effect to the purpose of the OHSA - to protect worker safety - the Court of Appeal found that the duty to report and to preserve the site of a critical injury or death only arises...