Blue Mountain Resorts Ltd. v. Ontario (Minister of Labour) et al., (2013) 302 O.A.C. 124 (CA)

• Judge: MacPherson, Armstrong and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 07, 2013
• Jurisdiction: Ontario
• Citations: (2013), 302 O.A.C. 124 (CA);2013 ONCA 75

Blue Mountain Resorts Ltd. v. Ont. (2013), 302 O.A.C. 124 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. FE.005

Blue Mountain Resorts Limited (applicant/appellant) v. Richard Den Bok, The Ministry of Labour and the Ontario Labour Relations Board (respondents/respondents)

(C54427; 2013 ONCA 75)

Indexed As: Blue Mountain Resorts Ltd. v. Ontario (Minister of Labour) et al.

Ontario Court of Appeal

MacPherson, Armstrong and Blair, JJ.A.

February 7, 2013.

Summary:

A guest drowned in an unsupervised swimming pool at a large recreational resort. Section 51(1) of the Occupational Health and Safety Act required employers to notify an inspector of the occurrence where a "person" died or was critically injured from any cause at a "workplace". The resort did not notify the inspector because the guest was not a worker. An inspector determined that the guest was a "person" and the unsupervised swimming pool was a "workplace", obligating the resort to report the occurrence. The Ontario Labour Relations Board upheld the inspector's order. The Board held that "person" was not limited to workers. The Board rejected the resort's submission that "workplace" required the physical presence of a worker at a place where a worker works at the time at which the occurrence with a guest or other person took place. The resort sought judicial review.

The Ontario Divisional Court, in a judgment reported (2011), 278 O.A.C. 325, dismissed the application. The Board's decision was not unreasonable. The parties agreed that "person" was not limited to workers. The unsupervised swimming pool was a place where one or more workers worked. The fact that no worker was physically present at the time of the drowning did not result in the swimming pool not being a "workplace" at that time. The resort appealed.

The Ontario Court of Appeal allowed the appeal. The Board's interpretation of s. 51(1) was unreasonable, as it lead to the conclusion that "every death or critical injury to anyone, anywhere, whatever the cause, must be reported". A proper interpretation of s. 51(1) "requires that there 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. There was no such nexus here".

Statutes - Topic 507

Interpretation - General principles - Sensible and not literal interpretation - [See Trade Regulation - Topic 7703.1 ].

Statutes - Topic 2402

Interpretation - Interpretation of words and phrases - General principles - Avoidance of absurdity - [See Trade Regulation - Topic 7703.1 ].

Trade Regulation - Topic 7703.1

Industrial safety - General - Work area or workplace defined - A guest drowned in an unsupervised swimming pool at a large recreational resort - Section 51(1) of the Occupational Health and Safety Act required employers to notify an inspector of any occurrence where a "person" died or was critically injured from any cause at a "workplace" - The Ontario Labour Relations Board determined that the guest was a "person" and the unsupervised swimming pool was a "workplace", obligating the resort to report the occurrence - "Person" was not limited to workers and "workplace" did not require the physical presence of a worker at a place where a worker works at the time at which the occurrence with a guest or other person took place - The Ontario Divisional Court dismissed the resort's judicial review application on the ground that the Board's interpretation of s. 51(1) was not unreasonable - The Ontario Court of Appeal set aside the Board's interpretation as unreasonable, because such a broad interpretation would lead "to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause , must be reported" - The court held that the notification and reporting requirements of s. 51(1) were engaged where "a) a worker or non-worker ('any person') is killed or critically injured; b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work ('workplace'); and c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace ('from any cause')"- The Board's literal reading of s. 51(1) would lead to absurd results, rendering its decision outside the range of possible, acceptable outcomes which were defensible in fact and law - See paragraphs 45 to 67.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

Lennox Drum Ltd. v. Ah-Hone et al. (2010), 266 O.A.C. 396; 2010 ONSC 4424 (Div. Ct.), refd to. [para. 20].

R. v. Timminco Ltd. (2001), 144 O.A.C. 231; 54 O.R.(3d) 21 (C.A.), refd to. [para. 24].

Ontario (Minister of Labour) v. Hamilton (City) (2002), 155 O.A.C. 225; 58 O.R.(3d) 37 (C.A.), refd to. [para. 25].

Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031; 183 N.R. 325; 82 O.A.C. 243, refd to. [para. 29].

Boma Manufacturing Ltd. et al. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161, refd to. [para. 29].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 43].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 45].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 45].

Grey v. Pearson (1857), 29 L.T.O.S. 67 (H.L.), refd to. [para. 50].

R. v. Port Colborne (City), [1992] O.J. No. 2555 (C.J.), refd to. [para. 58].

R. v. Wyssen (J.) (1992), 58 O.A.C. 67; 10 O.R.(3d) 193 (C.A.), refd to. [para. 63].

Statutes Noticed:

Occupational Health and Safety Act, R.S.O. 1990, c. O-1, sect. 51(1), sect. 51(2), sect. 54(a), sect. 54(b), sect. 54(c), sect. 54(i) [para. 7].

Counsel:

John Olah, for the appellant;

David McCaskill and Kikee Malik, for the respondents, Richard Den Bok and the Ministry of Labour;

Leonard Marvy, for the respondent, Ontario Labour Relations Board;

John Terry and Sarah Whitmore, for the intervenor, Conservation Ontario;

Peter Pliszka, Rosalind Cooper and Andrew Baerg, for the intervenor, Tourism Industry Association of Ontario.

This appeal was heard on September 27, 2012, before MacPherson, Armstrong and Blair, JJ.A., of the Ontario Court of Appeal.

On February 7, 2013, the following judgment of the Court was released by Blair, J.A.