Legal Eye: Your risks when non-employees are injured on site

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It’s a matter of wait-and-see whether The Ontario Court of Appeal will uphold the decision that employers and constructors may be required to report critical injuries to non-workers in the workplace, whether or not a worker is affected or present at the time of the injury. However, a Toronto lawyer is suggesting companies play it safe.

When a guest drowned in a swimming pool at Blue Mountain Resort in 2007, the company did not notify the Ministry of Labour but after a visit from the ministry they were ordered to report the accident under the Occupational Health and Safety Act, which requires the employer to notify an inspector when “a person is killed or critically injured from any cause at a workplace.”

In the past this has been interpreted as meaning employees only, however the Ontario Divisional Court upheld the order, indicating that any serious accident at a workplace needs to be reported to the ministry. The Court of Appeals will examine the case this year, which has drawn attention from many resorts, ski hills and theme parks. Conservation Ontario, which manages 140,000 hectares of land used for hiking and camping, is also an intervener in the case.

“There was no statement from the courts that said you have an obligation even if it’s a non-work related incident,” says Filion Wakely Thorup Angeletti associate Lauren Chang Maclean. “Since Blue Mountain it’s clear that the ministry is expecting that any critical injury or death in what could be considered a workplace will trigger the obligation to report.”

Another point requiring clarification is the requirement to preserve the scene following an accident. For large sites, such as the 750 acre Blue Mountain, the concern is that the ministry may require them to close entire ski hills or even wider areas.

“That could cause significant problems for a place where there are a large number of people on site. You don’t want to have to shut down the whole place if one person is injured,” says Chang Maclean.

The Court of Appeal may choose to clarify the obligations or indicate that there needed to be changes to current laws, but until then there was an obligation to report and Chang Maclean suggested it was a matter of better safe than sorry.

“We’re cautioning employers to take the more conservative approach to make sure they’re in compliance with the law and that means reporting any serious accident to the ministry,” she says.







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