Monday, April 29, 2013

Reporting Every Incident: ‘Person’ vs. ‘Worker’ in the OHSA

Reporting Every Incident: ‘Person’ vs. ‘Worker’ in the OHSA
Person vs. Worker
The Occupational Health and Safety Act (OHSA) is set up to outline the rights and duties of all parties in the workplaces. Typically when one thinks of “workplace parties” the employer, managers/supervisors, and employees come to mind.  As such, most employers consider the OHSA to protect only workers of the workplace, but based on some of the specific wording in the act this may not be the case.  
In Ontario, under subsection 51 (1) of the OHSA, the Ministry of Labour (MOL) must be notified immediately after the occurrence of a death or injury at the workplace.  The belief has been that this only relates to deaths or injuries of a person employed by the workplace, but a recent OLRB case involving Blue Mountain resort reveals that in fact is not the case.
In December of 2007, an unsupervised guest at the Blue Mountain Resort in Ontario drowned in the indoor swimming pool. When the incident occurred, no workers were present in the pool area.  Blue Mountain decided not to report the fatality to the Ministry of Labour since the incident did not involve a worker.  Four months later a Ministry of Labour inspector visited the resort to conduct workplace compliance audit, and soon found out about the drowning.  As a result Blue Mountain was issued an order under Ontario’s subsection 51 (1) of the OHSA which states that:
Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means...
Based on the literal wording of the act, Blue Mountain was given an order since they failed to notify an inspector of the death of a person.  Blue Mountain appealed the order to the Ontario Labour Relations Board (OLRB) and further sought judicial review, but both the board and the Court upheld the order.
Subsection 51 (1) is not the only instance of the use of the word “person” in the OHSA.  While the term person is not defined in the act, “worker” is defined as “a person who performs work or supplies services for monetary compensation...” therefore the OLRB held that the term “person” was more expansive than “worker” and that the OHSA wouldn’t have used the word “person” if they only meant “worker.” The main reason for why the MOL requires non-worker fatalities and injuries to be reported is that the workplace hazards that injure non-workers may also endanger workers.
What does this mean for Employers?
While the responsibility under the OHSA to report deaths or critical injuries hasn’t changed or been revised, the outcome of the Blue Mountain case has broadened the understanding of OHSA’s definitions.  This new understanding runs the risk of turning almost any place into a workplace, and any injury or fatality as an incident to report.  What is and isn’t a reportable injury to the MOL under the OHSA?  Currently the answer really can only be left to, “it depends on the circumstances.”
Under the Canada Occupational Health and Safety Regulations Section 15.3 it states: Where an employee becomes aware of an accident or other occurrence arising in the course of or in connection with the employee’s work that has caused or is likely to cause injury to that employee or to any other person, the employee shall, without delay, report the accident or other occurrence to his employer, orally or in writing.
Manitoba’s legislation is very close to Ontario’s in that “Persons” are referred to in the act and the Division must be called should a critical injury or death occur.  PEI is in a similar position.  Although both provinces do not have case law similar to Blue Mountain that they were aware of, the Blue Mountain Case will likely set a precedent in other jurisdictions.
In speaking with Worksafe BC, they indicated their legislation is specific to a worker - Section 172 of the Workers Compensation Act ("Act") states:
172 (1) An employer must immediately notify the Board of the occurrence of any accident that (a) resulted in serious injury to or the death of a worker….
While some provinces make reference to person and some do not;   what all employers across Canada need to do is take every precaution when dealing with any type of workplace accident; this should also include when a non-worker accident occurs.  Proper accident and incident reporting procedures should be developed and in place complete with employer, employee, manager/supervisor, and Health and Safety representative responsibilities in order to ensure Health and Safety Legislation and Provincial Governance Compliance is met.
Lynne Bard is President and Senior Consultant of Beyond Rewards Inc, a preeminent human resources, risk management, safety, health and training consulting firm based in Guelph, Ontario.  Contact Lynne at
Lynne Bard, BA (Honours), C.H.R.P., CES
Human Resources, Safety & Risk Management Experts
Taking the Complexity out of Compliance
Beyond Rewards Inc.
Phone: 519-821-7440
Cell: 519-830-7480

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