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| photo: Globe and Mail |
The Ontario Ministry of Labour made waves in our little industry in 2011 when it found Blue Mountain (Ski) Resorts Ltd at fault for not reporting a client death as a work-place incident. What didn't make news was that the finding was downgraded significantly on appeal in February of 2013.
In 2011, the MoL decided that client injuries are now considered a reportable incident, and are to be treated as a worker injury. From the Ministry of Labour's 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). Link to original AdventureRiskReport story here.
This was problematic on several levels. The Ontario Conservation Areas, for example, and the Ont. Police Chiefs all petitioned against it, as technically all public lands and highways become a 'workplace' if someone is killed there. For adventure operators, it meant any client injury/death became a reportable incident.
A 2013 appeal downgraded this 'duty to report'. In summary:
- There is a subheading at [23] in the appeals court
judgment entitled 'The Board's Interpretation is Unreasonable'
- The Court of Appeal did not agree with the Divisional
Court's statement that, "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" [32]
- The appeals court said at [54] that "it does not
follow that any death or critical injury involving any person ... is caught by
s.51(1)"
- The appeals court concluded at [59]:
"In summary, the notification and reporting
requirements of s. 51(1) of the Act are engaged where:
a) a worker or non-worker (“any person”) is killed or
critically injured;
b) the death or critical injury occurs at a place where
(i) a worker is carrying out his or her employment duties at the time the
incident occurs, or, (ii) a place where a worker might reasonably be expected
to be carrying out such duties in the ordinary course of his or her work
(“workplace”); and
c) there is some reasonable nexus between the hazard
giving rise to the death or critical injury and a realistic risk to worker
safety at that workplace (“from any cause”)."
Bottom line: there is only a duty to report death/injury of a client if the risk posed real simultaneous threat to employee (‘nexus’). Blue Mtn’s
swimming pool scenario would not apply, nor would (most) interactions with
inherent risks. A propane explosion, for example, would apply, but not having a
client fall while on belay. Avalanche yes, drowning no.
For the link to the appeal decision (legal lingo alert!), click here
Thanks to Jon Heshka for input on this.