The Obligation to Report a Critical Injury of a Non-Worker
Despite a controversial 2009 decision by the Ontario Labour Relations Board (Board) against Blue Mountain Resorts Limited, many employers operating in Ontario are still not aware of the obligation under the Occupational Health and Safety Act (OHSA) to report a critical injury suffered by any person,including a non-worker, which occurs in a workplace.
The requirement to report all injuries has far reaching implications for a retirement home, where falls and injuries may occur more frequently than in otherworkplaces. For example, if a resident or visitor falls and loses consciousness or breaks an arm, under the OHSA the retirement home operator mustimmediately notify a Ministry of Labour Inspector of the injury and secure the scene until it is cleared for release.
What Happened at Blue Mountain?
The Ministry of Labour issued an Order against Blue Mountain when it failed to report to the Ministry the death of a guest found in an unsupervised swimming pool. The Resort appealed the Order to the Board because the Resort did not believe it was required to report the death of a non-worker who appeared to dieof natural causes in a recreational facility.
The Board held the reporting obligation in s. 51(1) of the OHSA should not be interpreted to apply only to a worker. Section 51(1) states:
Where a person is killed or critically injured from any cause at a workplace the employer shall notify an inspector and within forty-eight hours after the occurrence, send to a director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.
Critical injury, as set out in the regulations, means:
an injury of a serious nature that,
- places life in jeopardy,
- produces unconsciousness,
- results in substantial loss of blood,
- involves the fracture of a leg or arm but not a finger or toe,
- involves the amputation of a leg, arm, hand, or foot but not a finger or toe,
- consists of burns to a major portion of the body, or
- causes the loss of sight in an eye.
The Board also held the term workplace, which is defined in the OHSA as any land, premises, location or thing at, upon in or near which a worker works, should not be restricted only to areas were workers are present at the time of the injury. It should include all areas in or near where workers performwork, regardless whether workers are present at the time an injury occurs. In a retirement home setting, this broad definition captures resident rooms ifthey are accessed by workers to provide care or custodial services.
Following the release of the Board's decision, the Resort brought an application for judicial review, which is still before the Courts. However, unless the Board's decision is overturned which does not appear to be likely a retirement home operator must comply with the accident reporting obligations underthe OHSA, even if the person injured is a resident or visitor and no matter how the injury occurred. This means, for example (as noted earlier), if aresident or visitor falls and loses consciousness or breaks an arm, the retirement home operator must immediately notify a Ministry Inspector of the injuryand secure the scene until it is cleared for release.
Best Practices A 12 Step Critical Injury Checklist
Although reporting requirements differ from jurisdiction to jurisdiction we offer this basic 12 Step Checklist to help guide retirement home operatorsthrough the critical injury reporting process. Every home operator should discuss these obligations with their lawyer to ensure their home is in a position to anddoes comply with whatever laws apply in the jurisdiction in which the home operates:
- Provide medical assistance.
- Preserve the scene.
- Contact your lawyer who will explain the process and help you through these steps.
- Determine whether reporting is required.
- Comply with reporting requirements.
- Gather factual information.
- Complete required reports.
- Co-operate with any provincial labour investigation.
- Conduct an internal investigation.
- Protect the results of the internal investigation from disclosure.
- Obtain independent expert advice.
- Take steps to prevent a reoccurrence.
A jurisdictional issue: Sherrard Kuzz LLP is a Canadian law firm based in Ontario. The scope of our knowledge is Canadian law. Any reader of our columnbased in another jurisdiction should appreciate what we write may not necessarily be applicable outside of Ontario or Canada. However, even if the laws aredifferent in another jurisdiction, the issues we address are practical and often have general application regardless of the domestic statute which may legally apply.
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