Law Times

Page 12 August 5, 2013 Law Times • FOCUS Employers welcoming Blue Mountain 'didn't dodge' bullet Reporting obligation could still apply when non-workers injured at workplaces BY JULIUS MELNITZER For Law Times O n the whole, employers welcomed the Ontario Court of Appeal ruling earlier this year that overturned the decision of the Divisional Court in  Blue Mountain Resorts Ltd. v. Ontario (the Ministry of Labour and the Ontario Labour Relations Board). The Divisional Court had ruled employers' duty under the Occupational Health and Safety Act to report all fatal and critical injuries at a workplace extends beyond workers to members of the public where the incident arises from hazards or risks to which employees are vulnerable. But the appeal court saw things differently. "The interpretations [the Divisional Court and the board] gave to s. 51(1) of the OHSA would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a 'workplace' because a worker may, at some time, be at that place," wrote Justice Robert Blair. "This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported. Such an interpretation goes well beyond the proper reach of the act and the reviewing role of the ministry reasonably necessary to advance the admittedly important objective of protecting the health and safety of workers in the workplace. It is therefore unreasonable and cannot stand." In the Court of Appeal's view, an incident wasn't reportable unless there was "some reasonable nexus between the hazard giving rise to the death" and "a realistic risk to worker safety at that site." "This is the occupational health and safety case of the year for employers," says Cheryl Edwards of Heenan Blaikie LLP's Toronto office of the Court of Appeal's decision. "It  is so sensible and  such a relief for municipal, retail, and health-care sector employers, as well as school boards and others." Blue Mountain arose in Employers may still have to report nonworker injuries in some circumstances, says Arthur Zeilikman. December 2007 when a guest of Blue Mountain Resorts drowned in an unsupervised swimming pool there. Blue Mountain didn't report the incident to the Ministry of Labour because it didn't involve a worker. But Richard Den Bok, a ministry inspector, ordered Blue Mountain to report the death pursuant to s. 51(1) of the act that requires reporting when any "person" is killed or injured at a workplace. The Ontario Labour Relations Board upheld the order, reasoning that reporting was necessary where workers are vulnerable to the hazard underlying an incident. The Divisional Court upheld the board's interpretation that non-worker injuries were reportable. According to the court, there was no dispute that the swimming pool was a place where workers worked and the absence of an employee at the time of the incident didn't detract from the fact that it was a workplace. In addition, since workers and guests are vulnerable to the same hazards, it served the legislation to have employers report common risks. The Court of Appeal ruling doesn't mean employers are completely out of the woods, however. "Employers didn't dodge the bullet completely because the Court of Appeal decision maintains the obligation to report an injury at a workplace so long as it's the kind of injury that can relate to an employee," says Arthur Zeilikman of Zeilikman Law in Richmond Hill, Ont. In others words, employers could still have reporting obligations when members of the public are involved in accidents causing death or critical injury as long as there's a reasonable link between the hazard and worker safety and the incident occurs at a place where an employee was carrying out or could reasonably be expected to be carrying out duties. The upshot is that Blue Mountain could affect workplaces that are accessible to the public, such as hotels and resorts, hospitals, retirement homes, and retail stores. Indeed, occupational health and safety lawyers are advising their clients to update their crisis management procedures and related training to take into account the reporting potential when any person is injured or killed at a workplace. Colin Kelly and Jason Hanson of Osler Hoskin & Harcourt LLP's Toronto office, writing in a recent firm update, offer some pointers in this regard: • Ensure that crisis management procedures and training apply to both worker and non-worker deaths and critical injuries in the workplace. • Ensure a familiarity with the expanded meaning of critical injury as defined in the act. • Understand that workplace is broadly defined as "any land, premises, location or thing at, upon, in or near which a worker works" and may in some circumstances include third-party locations. • Understand the strict time frames for reporting deaths and critical injuries. • Be aware of the restraints against interfering with the scene of an accident. Ultimately, employers will have to do a detailed individual analysis of situations where nonworkers are injured in order to determine whether reporting is necessary. Some lawyers are suggesting clients give notice to and ask the ministry whether it will be investigating and whether it's willing to release the employer from its obligation to preserve the scene. Employers could help their cause by being very specific about the facts, particularly those that militate against an investigation. LT Canada 'behind the curve' on Islamic finance BY JULIUS MELNITZER For Law Times F or several years now, the Toronto Financial Services Alliance, a public-private partnership dedicated to building Toronto as a global financial services centre, has promoted the idea of positioning the city as the North American hub for alternative, also known as Islamic, financing. The realization of that goal would be a significant development not only for Toronto's economy but for its major law firms. "Most of the large Canadian law firms have some experience with clients or issues involving Islamic finance," says Jeffrey Graham of the Toronto office of Borden Ladner Gervais LLP. The firm recently hosted a seminar on Dubai's plans to become a global hub for the Islamic economy. By way of example, Blake Cassels & Graydon LLP, Bennett Jones LLP, and Norton Rose Fulbright Canada LLP have presences in the Persian Gulf region. Stikeman Elliott LLP's lawyers have written extensively about Islamic finance and Cassels Brock & Blackwell LLP has given advice to parties in that space. "It's an opportunity for the legal community, in conjunction with the financial services and business consulting community, to promote Toronto in a way that is both different and complementary to what they are doing otherwise," says Graham. See Strategy, page 13 www.lawtimesnews.com

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