Law Times

June 13, 2011

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Follow on www.twitter.com/lawtimes $4.00 • Vol. 22, No. 20 Untitled-3 1 5/5/10 3:55:30 PM Inside This Issue 5 Summary Judgment Covering Ontario's Legal Scene ntitled-3 1 Billions of dollars invested, not a penny lost. June 13, 2011 5/4/10 2:49:21 PM Safety ruling turns heads Forced reporting of non-worker injuries 'wrong' BY JULIUS MELNITZER For Law Times 7 T Native Impasse 8 Focus On Real Estate Law Quote of the week "I don't think there's a lawyer who hasn't thought about selling properties themselves when they write an enormous cheque to a Realtor or have a Realtor come in with problems that the lawyers have to fi x." — Michael Forcier See Lawyers, page 11 he Divisional Court has ruled that employers' duty under the Occupa- tional Health and Safety Act to re- port all fatal and critical injuries at a work- place extends beyond workers to members of the public when the incident arises from potential hazards or risks to employees. Th e decision in Blue Mountain Resorts Ltd. v. Ontario (the Ministry of Labour and the Ontario Labour Relations Board) has far- reaching implications. "Blue Mountain impacts on any workplaces that are accessible to the public, such as hotels and resorts, hospitals, retirement homes, and retail stores, and represents a very burdensome approach for employers," says Mary Beth Cur- rie of Bennett Jones LLP's Toronto offi ce. "Consider the position of ski areas that have 30 broken legs in a single weekend or a large public place like the Eaton Centre if they have to call the ministry each time a guest is injured in a place that's accessible to employees." Indeed, the Ontario Association of Chiefs of Police sought to intervene in Blue Mountain, arguing that requiring the po- lice to give notice each time someone died would constitute an interference with their duties under the Police Services Act. "Th e intervention application failed but it does highlight the diffi cult intersection between workplace injuries to the public and workplace injuries to workers," Currie says. Th e case arose in December 2007, when a 'Employers who have never thought about report- ing before will now have to think hard about it,' says Mary Beth Currie. guest of Blue Mountain Resorts drowned in an unsupervised swimming pool there. Blue Mountain didn't report the incident to the ministry because it didn't involve a worker. But Richard Den Bok, a ministry in- spector, ordered Blue Mountain to report the death pursuant to s. 51(1) of the act, which requires employers to do so when any person is killed or injured at a work- place. Th e Ontario Labour Relations Board upheld the order. It reasoned that reporting was necessary when workers are vulnerable to the hazard underlying an incident. Th e board also ruled that all of the roughly 300 hectares of land at the Blue Mountain Resort constituted a workplace. Th e Divisional Court upheld the board's interpretation that non-worker injuries were reportable. But in doing so, the court may have created more confusion than clar- ity. Oddly, the diffi culty lies in the court's rejection of the board's conclusion that all of Blue Mountain was a workplace. According to the court, there was no dis- pute that the swimming pool was a place where staff worked, and the absence of an employee at the time of the incident didn't detract from the fact that it was a workplace. Since "workers and guests are vulnerable to the same hazards," it served the legislation to have employers report common risks. But that didn't mean that all of Blue Mountain was a workplace. Rather, what constituted a workplace was dependent on the facts of each case with regard to the nature of the hazard, the context in which the injury occurred, and the nexus with worker safety. But the court ruling leaves employers in a conundrum even though it may be preferable See Obligations, page 2 Profession's reputation a lost cause, lawyers told BY MICHAEL McKIERNAN Law Times L awyers need to stop wor- rying about the profes- sion's reputation with the public since it's a lost cause, ac- cording to a Bay Street lawyer and former politician. Instead, Tim Murphy, chief marketing partner at McMillan LLP, said lawyers should embrace their role as service providers and focus on improving access to justice. "We don't save lives, we don't feed people, we don't rush into burning buildings except acciden- tally," he said. "We do play a key role in the system as defenders of the minority view and the unpop- ular. Unsurprisingly, that's going to make us unpopular. I think people understand that it's a role we play and that it's important that we play it, but that doesn't mean they're going to like it. "To the degree that any of our negative reputation comes from the quality of our service or its accessi- bility, we need to be unerring in fi x- ing those problems. Th ose are the things that we can do something about and those are the things we ought to do something about." Murphy, a former Liberal MPP in Toronto, was the keynote speaker at the Law Society of Up- per Canada's sixth annual Solo and Small Firm Conference and Expo on June 3-4 at the Metro Toronto Convention Centre. Jokes about the profession have been around for as long as there have been lawyers, and Murphy said those who wish to stamp them out and put them- selves in the same bracket as doc- tors, fi refi ghters, and nurses are simply aiming too high. "Certain public opinion truths are inalienable. We are seen as a necessary evil; inevitable, like death and taxes. In public opin- ion terms, we are expensive, in- accessible, have situational eth- ics, defend criminals, and are involved in politics. Wow, don't we sound great?" Murphy said he learned from his time as chief of staff to former prime minister Paul Martin that views as entrenched as that are tough to shake, especially when media portrayals reinforce them. "Th ey carry a decidedly warped view of what we do. Th at's just the nature of it, and there's not See Most, page 2 Click here to subscribe today to LAW TIMES Not everyone has the skill set needed to be a sole practitioner, says Laurie Pawlitza. www.adrontario.ca/findapro.cfm ADR Connect: LT Digital version.indd 1 Find an ADR Professional 416-487-4447 • admin@adrontario.ca Mediators Untitled-2 1 www.lawtimesnews.com Gold Standard Arbitrators 5/20/11 1:11:30 PM 6/25/10 12:59:47 PM

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