Confusion Follows Blue Mountain Appeal!

Confusion Follows Blue Mountain Appeal
In 2007 a guest at Blue Mountain Resorts drowned in a swimming pool.  The hotel was charged by the MoL with failing to report that fatality to the Ministry, as required under Section 51 (1) of the Act ( “… where a person is killed … the employer shall notify an inspector …”).  The hotel initially appealed to the OLRB, unsuccessfully arguing that the death in an unsupervised swimming pool was unrelated to the workplace.  They were also unsuccessful in their appeal to the Divisional Court.
The Court of Appeal, however, took a different view.  While agreeing that workers may be subject to the same hazards as members of the public in some workplaces, it said this concern cannot be based on a vague or general hazard.  Furthermore, it said that the OLRB decision had the potential to reach far beyond the original purpose of the OH&S Act.  It concluded that the conclusion of the OLRB and the Divisional Court was unreasonable and the appeal was allowed.
The Court of Appeal said that there must be a “reasonable nexus” between the hazard that caused the death or critical injury and any realistic risk to workers in the workplace to trigger the need to report the death or critical injury to the Ministry.  This significantly changes the historical interpretation of Section 51 of the Act, and seems to place the burden of making the decision concerning the existence of a “reasonable nexus” upon the employer.  Stay tuned for possible guidance from the Ministry, but, for those who have members of the public in the workplace, the prudent course may still be to phone the Ministry in the event of a fatality or critical injury involving anyone in the workplace.