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By Henry Dinsdale and Jeff Goodman A broad definition Ruling raises questions about reporting incidents to the Ministry of Labour. notified immediately; the site of the fall is to be secured and preserved except to relieve suffering, and the accident must be reported within 48 hours to the Ministry of Labour. This is as it should be according to occupational health and safety officials of the Ministry of Labour, and Ontario's Superior Court has said that they may well be right. Are the same obligations triggered A if a student is briefly knocked out at a high school rugby game? Or a skate- boarder breaks his arm boarding after hours in a retailer's parking lot? Or a patron has a heart attack in a movie theatre? What about when a patient dies in a hospital? These are serious questions raised by a recent ruling of the Divisional Court, which upheld a decision of the Ontario Labour Relations Board in Blue Mountain Resorts Ltd. v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board). The case is under appeal to the Court of Appeal, but chances are it will be upheld. Blue Mountain Resort spans 750 terrain, lodging, and retail acres of establishments with skiing in the win- ter and mountain biking and other rec- reational activities in the summer. The case arose when a guest at the resort drowned in an unsupervised indoor swimming pool. A Ministry of Labour inspector ruled the resort violated the Occupational Health and Safety Act by not reporting the incident to the min- istry within 48 hours of its occurrence. person falls while skiing and breaks her arm. The ski resort's occupational health and safety commit- tee and union are to be The act requires employers to report to the ministry "where a person is killed or critically injured from any cause at a workplace" (s. 51(1)). The reporting obligation in turn triggers an obligation to preserve the scene of the incident (s. 51(2)). The central questions in Blue Moun- tain were whether "person" should be interpreted as synonymous with The board upheld the inspector's order and found that the resort's fail- ure to report the incident to the Min- istry of Labour breached the act. On judicial review, the Divisional Court did not find the board's logic to be unreasonable; indeed, the court found the board's reasoning to be "transpar- ent, intelligible, and justified." While the court upheld the board's decision, it ruled the board did not have to determine, as it did, that the entire 750 acres of the Blue Mountain resort constituted a "workplace" under the act. In fact, the court was clearly not persuaded that such a conclusion would be reasonable. But while, in the The Ontario Labour Relations Board, at first instance, agreed that the underlying purpose of the act is to protect workers, but did not agree that "person" should be interpreted as synonymous with "worker." "worker," and how broad the phrase "any cause at a workplace" should be interpreted to be. The Ontario Labour Relations Board, at first instance, agreed that the under- lying purpose of the act is to protect workers, but did not agree that "person" should be interpreted as synonymous with "worker." The board traced the use of the two terms throughout the statute and determined that the legislature must have intended distinct meanings. "Person," it found, must be broader than "worker." The board also agreed with a broad interpretation of "any cause at a work- place" rejecting the argument that for a location to be a workplace, workers must be present at the time of the incident. "Workplace," it concluded, means a fixed location to which employees regularly report. court's view, the swimming pool was a "workplace," it found it unnecessary to define "workplace" further. Only time will tell whether the Court of Appeal will be more illuminating on this point. In the end, these decisions may ultimately be found to be reasonable legal interpretations of the statute, but they lead to a role for the Ministry of Labour that is neither practical nor logical. Prudent employers and employer associations should carefully analyze the impact of the decision on their business and develop a strategy to respond if and when the debate is relegated to the realm of regulators and legislators. IH Henry Dinsdale and Jeff Goodman are labour and employment law partners with Heenan Blaikie LLP in Toronto. INHOUSE OCTOBER 2011 • 7