Canadian Lawyer

LEGAL REPORT/Labour & employment Kirsten Thompson, counsel with McCarthy Tétrault LLP, also thinks the decision provides clarification and comfort. "There was a collective sigh of relief breathed among employers because the lower court's interpretation was quite broad and a number of employers were scratching their heads as to how they would comply with it. . . .This is a deci- sion that looks at outcomes and their application in a day-to-day business milieu." But the definition of a "reasonable nexus" will continue to play out in the courts, she adds. There has already been a lowercourt decision since Blue Mountain that could be seen as contradictory. On Feb. 12, 2013, the Ontario Court of Justice Call us anytime. Really. Our 24 hour line is answered by a Sherrard Kuzz lawyer – 24 hours a day, 7 days a week, even holidays. So when a health and safety inspector is at the door, a picket line is going up or a union organizer is handing out leaflets to the midnight shift (and any other employment or labour matter), there's someone you can call. Our 24 Hour Line means our clients sleep well at night, even if we sometimes don't. Main 416.603.0700 24 Hour 416.420.0738 www.sherrardkuzz.com 40 ntitled-1 1 M ay 2013 www.CANADIAN released its reasons for judgment on Ontario (Labour) v. Guelph (City). The ministry launched legal action against the city after a 14-year-old girl, Isobel Warren, was killed when a concrete block privacy wall in a public washroom collapsed on her. Although the prosecution failed, Justice Michael Epstein defined the washroom as a "workplace" within the meaning of the Occupational Health and Safety Act, because it was "periodically cleaned and serviced by cleaning staff employed by the City of Guelph." This is a surprising conclusion, says Keith, considering the court would have had access to the Blue Mountain appeal. "I'm going to guess there's someone checking the pool and pH balance at Blue Mountain at least as often as they check the washroom in Guelph." The time limit for an appeal has passed but the case demonstrates how the nuances of each incident will need to be assessed in deciding whether reporting duties are triggered. Ryan Conlin, a partner at management-side firm Stringer LLP, has provided a set of examples on his blog to help demonstrate the practical implications of Blue Mountain. If a patient dies in a hospital of a heart attack, he writes, reporting is not required because the hazard that caused the death does not create a risk to workers. But if a patient is critically injured after tripping over an object in the hallway that was left there by a janitor, the hospital must report the incident as a worker could be harmed by the same hazard. In a less clear-cut hypothetical scenario, a bar patron is critically injured in a fight with another customer. Staff have previously asked the bar owner to ban the injured patron on the basis they were concerned about their own safety. This situation, Conlin writes, is "close to the line." There is not necessarily a "reasonable nexus" between the hazard and the risk to workers' safety, but a Read the Court of Appeal's Blue Mountain Resorts Ltd. v. Ontario (Labour) decision at canlii.ca/t/fw10n. L a w ye r m a g . c o m 13-04-19 8:56 AM

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