Blue Mountain drowning not a workplace accident

If a visitor is injured at your workplace, is it a workplace accident? If the answer is yes it opens employers up to all manner of complications and possible lawsuits, but a new decision has been clear in drawing the line for workplace health and safety.

It was a serious concern for all kinds of employers when the Ontario Labour Relations Board and Divisional Court both found that a drowning at Blue Mountain ski-resort was a workplace accident,  however a decision released this week from the Ontario Court of Appeal has reversed that ruling, calling it absurd.

 “(It) 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,” the Appeal Court ruled. “This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”

The case followed an incident in December 2007 when a guest drowned in an unattended pool at the Collingwood, Ontario, site. The Labour Ministry said the incident was reportable, but Blue Mountain argued that the pool was not a workplace and no workers were present when the drowning occurred.

The first court agreed with the Ministry, but the Appeals Court judge said this interpretation meant every death or critical injury would have to be reported because any location where a worker might go would be considered a workplace.

“There [must] be some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that site," the judge said. "There is no such nexus here.”

The decision will come as a relief for many employers, especially given the conditions in the act requiring employers to protect the scene of an accident from being altered or disturbed. For a resort such as Blue Mountain that could mean closing a ski slope in the case of an accident.