Courts re-interpret language of labour law; impacts adventure operations

Adventure operators, outdoor centres, wilderness programs - all Ontario businesses, in fact - are now obliged to report any serious client injury to the Ministry of Labour. This is new.

A May, 2011, ruling by an Ontario Court makes clear important (and problematic) obligations under the Occupational Health and Safety Act (OHSA). Without going into the details of the ruling (see the link below), the point being argued was the definition of 'a person' and 'workplace', as listed in the OHSA.
 In particular, section 51(1) applies when a "person is killed or critically injured from any cause at a workplace". While nothing in the law has changed, it has long been interpreted (by operators) as a 'person' being a worker, as this legislation is designed to protect workers. In this case the judge decided that a 'person' is any person, and workplace includes any aspect of an operation (i.e. workers do not have to be present). The rationale behind the ruling is that "workers and guests are vulnerable to the same hazards". The details of this case hinged around a guest drowning in a resort swimming pool.

Therefore, client injuries are now considered a reportable incident, and are to be treated as a worker injury. From the Ministry of Labour's (MOL) view, this means work stops, the area is cordonned off, the MOL is notified and an investigation is to follow, as per section 51(1).

This is problematic on several levels.
  • The MOL was never intended to be a public safety office, although their interpretation of the OHSA has always aligned with the Judge's ruling. I would hazard to guess that they are not equipped to manage the multiplication of investigations that will now land in their lap.
  • Practically speaking, ski resorts alone will flood the MOL with incident reports. One operator quipped 'they better get a dedicated fax line for us...'
  • Adventure operators typically are not fully aware (or compliant) with the OHSA. How is this new interpretation and obligation being circulated to them?
  • Section 51(1) essentially states work stops until an investigation is complete. This suggests that ski runs will be closed, climbing sites shut down, and rapids (or rivers?) somehow avoided. Will highways and parks also be closed? This ruling applies to the public sector as well - all places of work.
  • the rationale for the ruling is based on the potential that "workers and guests are vulnerable to the same hazards". That may be true, but is an entirely separate issue, and not covered under the intent of the OHSA.
What does this mean? Operators are obliged to report, and face fines if they do not. My conversations with operators has been a: most don't know anything about this ruling (and don't worry much about the OHSA at any rate); b: heard about the ruling but don't intend to report client injuries to the MOL; c: flood the MOL with faxes of incident reports in hopes of seeing some change to the language.

The language ('a person') is the real root cause of this issue, and was the case at point. The judge's ruling does not work in the favour of operators, and likely does no favours to the MOL or the public as far as workplace safety is concerned.

Full text of the decision:
http://www.canlii.ca/eliisa/highlight.do?text=blue+mountain&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/on/onscdc/doc/2011/2011onsc3057/2011onsc3057.html