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"The decision's saying, 'let's not go outside the scope of the legislative intent.' It does protect workers but employers now know what the boundaries are." Mary Beth Currie, Bennett Jones LLP a workplace because it was "a place where one or more workers work." But on Feb. 7, 2013, Justice Robert Blair, writing for the Court of Appeal panel, ruled, "Such an interpretation goes well beyond the proper reach of the Act." By the inspector's own admission, making such a report could mean shutting down a televised hockey game every time a player was critically injured on the ice, until the ministry deemed the area safe. It could also have affected retailers and places of worship, for instance by forcing them to suspend services if a member of the public suffered a heart attack. In addition, it could have led to highways being classed as "workplaces" owing to the fact police patrol them, and parents who employed a nanny having to contact the ministry if their child was injured. For Blue Mountain, filing a report would have had serious consequences for public safety and business continuity. The resort employs 1,750 staff and in a typical February will have up to 16,000 visitors on Saturday and 10,000 on Sunday. According to the resort's evidence, it sees around 1.5 skiingrelated incidents for every 1,000 visitors, meaning there could be as many as 39 injuries or deaths over the course of a February weekend that would have to be reported to the ministry, under a stricter interpretation of s. 51. Having to close slopes temporarily and build barricades would create potential hazards to guests, as well as disruptions to operations more generally, the resort's counsel argued. Taking all this into consideration, Blair re-interpreted the act as only requiring accidents to be reported where 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 site." The death or critical injury must occur in a place where "a worker is carrying out his or her employment duties at the time the incident occurs" or where "a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work." To what extent does this ease the burden on employers? Norm Keith, a partner at Gowling Lafleur Henderson LLP, thinks the wording could lure some into a false sense of security. "I think Blue Mountain will potentially open up a risk . . . for employers who misinterpret the case," he says. "Several employers have already said to me they don't think they have to report things now. Clearly that's not correct." The "reasonable nexus" test could itself have led to a different outcome for Blue Mountain, using the very logic used to determine the appeal, argues Keith. For example, it is possible a worker could have slipped into the pool while testing chlorine levels, and drowned. In theory, the reasons for the slip could have been the same as for the guest who drowned, thereby creating the "reasonable nexus" that would trigger a report to the ministry. But Mary Beth Currie, a partner at Bennett Jones LLP, strongly believes the decision establishes clearer guidelines for employers, calling it a "return to sanity." She highlights Blair's comments in Ontario (Ministry of Labour) v. Hamilton (City). While that 2002 case reinforced the need for public health and safety legislation to be generously interpreted in keeping with its purpose and objectives, Blair said in Blue Mountain this "does not call for a limitless interpretation" of a statute's provisions, stressing the need to "avoid absurdity." Currie says this is helpful. "The decision's saying, 'let's not go outside the scope of the legislative intent.' It does protect workers but employers now know what the boundaries are." Let us open the right door for you We specialize in Employment and Labour Law in Canada Kuretzky Vassos Henderson is a leading employment and labour law firm situated in the heart of Toronto. We are comprised of eleven lawyers, all of whom specialize in the area of employment and labour law. We act for many prominent public and private sector employers as well as for individuals. Kuretzky Vassos Henderson LLP Our work includes extensive experience in the areas of: Wrongful dismissal • Human rights • Labour relations/Labour law/Collective barganing • Workplace health and safety • Sexual harassment • Employment standards • Employment contracts • Canada Labour Code • Class actions • Mediation/arbitration/ADR uretzky_CL_May_11.indd 1 www.kuretzkyvassos.com • 416.865.0504 www.CANADIAN L a w ye r m a g . c o m M ay 2013 39 4/14/11 10:32:23 AM

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