Court confirms duty to report injury, death of non-workers
A serious injury or fatality occurring on a condominium’s common elements gives rise to a host of issues and things that must be done promptly. One notification that many condominium boards and managers might not consider making is to the Ministry of Labour, particularly if the injured person is not a employee or contractor performing work for the condominium corporation.
A recent decision of Ontario’s Divisional Court clarifies the obligation of employers to report to the Ministry of Labour (“MOL”) critical injuries or fatalities suffered by people at their workplace and confirms that the obligation extends to non-workers.
This obligation is set out in section 51(1) of the Occupational Health and Safety Act (“OHSA”), which provides:
Notice of death or injury
51. (1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a [Ministry of Labour] Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.
In addition to MOL, this section also requires notification to be given to any applicable joint health and safety committee, health and safety representative and trade union.
In the case of Blue Mountain Resorts v. Ontario (Ministry of Labour), a guest of the Blue Mountain resort drowned in an unsupervised swimming pool at the 750 acre resort. The resort filed no MOL report about this incident. Three months later, an MOL inspector conducting a field audit at the resort heard about the drowning and ordered the resort to file a report under section 51(1) of OHSA. The resort refused, arguing that the guest was not a worker and that no report needed to be filed for that reason.
A further reason behind Blue Mountain’s refusal to file a report was that it was uncertain as to which portions of its 750 acre property was properly included as a “workplace.” Being a large ski resort that sees a number of its guests seriously injured or killed on its ski hills, the resort’s management was obviously concerned about the potential impact not only of the obligation to report injuries and fatalities but also the additional obligation to preserve the scene of a critical injury or fatality as set out in section 51(2) of OHSA, here:
Preservation of wreckage
51. (2) Where a person is killed or is critically injured at a workplace, no person shall, except for the purpose of,
(a) saving life or relieving human suffering;
(b) maintaining an essential public utility service or a public transportation system; or
(c) preventing unnecessary damage to equipment or other property,
interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector.
If the entire resort were found to be a “workplace” as suggested by MOL, then the resort would have to start roping off and preserving the scene of any serious injury or fatality suffered by guests on its ski hills and then keep those areas closed until receiving clearance from MOL. A delay or backlog at MOL could give rise to a serious disruption to the resort’s operations and business.
After hearing arguments, the Ontario Labour Relations Board upheld the Inspector’s order, finding that the drowning situation fell within section 51(1) of OHSA in that a “person” was killed from any cause at a “workplace” such that a report must be filed with MOL. In reaching this conclusion, the OLRB found that a “person” need not be a worker. There was also discussion on what constitutes a “workplace,” which is defined by OHSA as “any land, premises, location or thing at, upon, in or near which a worker works.” The resort had argued that the pool was unsupervised at the time of the drowning and that no workers were present, but the OLRB found that employees did periodically work around the pool area, and consequently found that the pool area formed part of the workplace, considering that:
"The fact that an employee is not physically present within a section of that “workplace” does not mean that that particular section is not part of the “workplace” during the period when no employees are present."
The resort appealed the OLRBs ruling to the Divisional Court.
The court upheld the OLRB’s ruling, agreeing that a “person” includes non-workers or guests and that the pool area fell within the meaning of a “workplace.”
The court also explained the scope of the section 51(1) obligation as follows:
[15] The obligation created by s. 51(1) upon employers to report when a person is killed or critically injured is driven by result rather than by causation. Hence on a plain reading of the subsection, any event resulting in death or critical injury, even if occurring in circumstances having no potential nexus with worker safety, is reportable so long as they occur in a workplace. For purposes of triggering the reporting obligation and ensuring a sufficient reach to deal with incidents having a possibility of genesis in working conditions, the subsection as interpreted by the Board has a potential to reach beyond the ambit of the purposes of the statute.
The underlying purpose of this obligation is clear: If a “person” (even a non-worker) could be critically injured or killed in a workplace, it is possible that some condition exists that could potentially lead to critical injury or death of a worker. If MOL is given notice of such a condition, then an order to rectify the situation can be made, potentially saving workers from serious injury or death.
As for what constitutes a “workplace,” the court rejected the resort’s argument that a worker must be present in order for a place to be defined as part of the “workplace.” The court did agree, however, that it was wrong for MOL to consider the entire 750 acre resort to be a workplace in this case but cautioned that each case must be decided on its own merits. This approach is sensible and could be particularly important for employers such as condominium corporations that have significant facilities or acreage.
Three lessons for condos
In addition to complying with section 51 of OHSA, here are three lessons might be of particular interest to condominium corporations, their directors and managers:
First: The constituent elements of the obligation to make a report under OHSA section 51(1) are as follows, all of which must be present to create the obligation to report:
1. Any person (including unit owners, tenants, guests, trespassers, workers, directors, managers);
2. Be “critically injured” or killed;
3. From any cause (whether work-related, act of god, etc.);
4. At a workplace.
Second: The entire condominium complex will not necessarily be a “workplace” but most of the common elements probably will be, especially areas where workers (including employees or contractors) periodically perform services. Typical services might include pool cleaning, window washing, HVAC servicing, landscaping and security foot patrols. Untended wooded areas or brush might arguably be excluded. While private condo units are arguably not part of the “workplace,” a unit would almost certainly be considered a workplace if a worker was injured or killed while performing services in the unit on behalf of the condo corporation. As always, get legal advice when confronted with a serious injury or fatality on your condominium property.
Third: In the case of a serious injury or death as a result of violence on the common elements of your condominium (which would likely require a report to be filed as per OHSA section 51(1) ), you can bet that an MOL inspector will ask to see your corporation’s workplace violence risk assessment and the workplace violence and harassment policy. For information on these items, which have been legally mandatory for a full year now, see the articles in the Winter 2010 and Autumn 2010 issues of our Condo Alert! newsletter.
For additional analysis and commentary on the impact of the Blue Mountain decision, see this case report by the labour and employment lawyers at Hicks Morley.
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The following guest entry by property manager and condo consultant 
