The decision is Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII) (“Blue Mountain”).   My colleague, Matthew Larsen, has provided a thorough summary which you will find by clicking “continue reading”.

In Blue Mountain, the Ontario Court of Appeal granted an appeal of Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board), 2011 ONSC 3057 (CanLII), which affirmed a decision of Ontario Labour Relations Board (“the Board”) dated March 23, 2009.

In granting the appeal, the Ontario Court of Appeal ruled that an employer is not required to report an injury to the Ministry of Labour unless there is a reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at the site.  This ruling resolves the concerns of certain employers that they would be saddled with reporting requirements under section 51 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”) that would extend to nearly every location and injury in the province.

BACKGROUND

On December 24, 2007, a guest at Blue Mountain Resorts (“Blue Mountain”) died while swimming in an unattended indoor pool at the resort.  No Blue Mountain employees were working there at the time the drowning occurred.  Blue Mountain took the position that it was not required to report the “guest injury” at its recreational facility because the facility where the death occurred was not predominantly a workplace and a worker was not present at the site when the injury occurred. 

An inspector under the OHSA took the view that reporting was required and issued an order to that effect.  The Board upheld that order.  An application for judicial review of the Board’s decision was dismissed by the Divisional Court which found that the Board’s determination that the swimming pool was a “workplace” was reasonable. 

ISSUE

The issue before the Court of Appeal in Blue Mountain was whether Blue Mountain Resorts was required to report the “guest injury” to the Ministry of Labour on the basis that it was a death or critical injury incurred by a person at a workplace as contemplated by subsection 51(1) of the OHSA.

Section 51 of the OHSA provides:

51.       (1) 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 and the employer shall, 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.

51.       (2) Where a person is killed or critically injured at a workplace, no person shall, except for the purpose of,

(a)  saving life or relieving human suffering;

(b)  maintaining an essential public utility service or a public transportation system; or

(c)  preventing unnecessary damage to equipment or other property, interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by the inspector.

The Court of Appeal was very clear that the decisions of the Divisional Court and the Board did not reflect a reasonable interpretation of section 51 of the OHSA:

The interpretations they [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.  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 [OHSA] 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.

The Court of Appeal employed hypothetical situations to highlight the possible effect of the Board and Divisional Court’s interpretation of the reporting requirements under section 51(1) of the OHSA.  These hypothetical situations helped to demonstrate the possible unreasonable effect of these reporting requirements, particularly when coupled with the requirements contained in section 51(2) to preserve the scene of an injury: 

Mr. Den Bok acknowledged that if there were a critical injury to a hockey player or a spectator during a Toronto Maple Leaf hockey game at the Air Canada Centre, it would have to be reported to the Ministry.  If the injury occurred on the ice, the hockey game would have to be shut down – televised or not – until the premises were released by a Ministry inspector.  He took the same position with respect to a wide variety of other circumstances.  For instance, he took the view that reporting to the Ministry would be mandatory in the case of customer injuries at a Canadian Tire Store or other retail outlet; in the case of injuries sustained by the public on highways patrolled by police (because the police or other workers may arrive after the accident, or may have passed by on a prior occasion); and in the case of worshippers who may suffer a heart attack or other critical injury at a religious institution (whether the services would have to be halted pending Ministry release of the place of worship, was left unsaid).

The broad implications of the Board and Divisional Court’s decisions were a concern to many employers, evidenced by the fact that both Conservation Ontario and the Tourism Industry Association of Ontario applied for and were granted intervenor status in this matter. 

The intervenors emphasized the potentially deleterious effect on recreational businesses if the decisions of the Board and Divisional Court were allowed to stand.  As an example, the intervenors noted that on a busy weekend a ski hill may be required to report dozens of “guest injuries” to the Ministry of Labour and could be required to shut down dozens of times while investigations are carried out. 

HOLDING

Having acknowledged the unreasonableness of the existing decisions, the Court of Appeal held that a proper interpretation of section 51 of the OHSA 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. 

The Court of Appeal in Blue Mountain set out a three prong test to determine whether a particular incident requires reporting under the OHSA, limiting the reporting requirements to incidents 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”).

IMPLICATIONS

The Court of Appeal’s decision is likely to be welcome news to many employers, as it means that employers need not report every critical injury or death that occurs at their workplace.  Nonetheless, the decision creates some uncertainty.  For instance, how will decision makers apply the three prong test set out by the Court of Appeal, particularly prongs b) and c)?  It will likely be some time before the implications of this three prong test are clear.  For instance, what constitutes a ‘reasonable nexus’ or a ‘place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work’. 

This decision may also have implications for employers operating outside of Ontario.  While decision makers in other provinces are not bound by the Court’s decision in Blue Mountain, they may nonetheless be influenced by the reasoning exercised by the Ontario Court of Appeal.  This is particularly likely where the relevant legislation contains wording similar to that contained in the OHSA. 

With respect to employers in British Columbia, where the reporting requirements require that employers report only serious injuries or deaths involving workers, the Court of Appeal’s decision in Blue Mountain is unlikely to have a significant impact. 

Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, 2012 BCCA 392:  On appeal was a decision by the WCAT that was upheld on judicial review.  A female worker suffered stress-related injuries as a result of conduct of a male co-worker.  When the injured worker sued her co-worker and their employer, Downs Construction, it was asserted that the court action was barred by section 10 of the WCA which places exclusive jurisdiction over injuries to workers arising out of and in the course of their employment with adjudicators in the no-fault workers’ compensation scheme.  

The problem for the injured worker was that her claim for workers’ compensation under the old mental stress provisions of the WCA was denied because it was determined that the alleged traumatic event was not unexpected.  WCAT also issued a certificate pursuant to section 257 of the WCA which provides that when a court action for occupational disease, personal injury or death is initiated then the WCAT can make certain declarations relevant to the section 10 bar.  WCAT issued a certificate that stated the injured worker’s court action involved “workers”, an “employer engaged in an industry” and any conduct of the employer which caused the alleged breach of duty of care arose out of and in the course of employment.   However, the WCAT also declared that the mental stress injury suffered by the worker did not arise out of and in the course of employment.  This final declaration was the reason for the judicial review application and appeal by the employer and the male worker.

The judicial review judge accepted the WCAT’s certificate and found:  “Absent a right to claim no fault benefits under the workers’ compensation legislation, workers are otherwise able to sue co-workers and employees for tortious conduct that occurs in the workplace”.  In other words, if an employee is not entitled to compensation under the narrow mental stress provisions of the WCA then they must be able to sue in court; otherwise there would be no remedy available.

The Court of Appeal disagreed.  The Court reviewed the nature of the “historic trade-off” that gave rise to workers’ compensation legislation in Canada.  Workers gave up their right to sue their employers for injuries sustained in the workplace but gained a no-fault compensation system.  The Court cited from Supreme Court of Canada jurisprudence which demonstrated that the bar to legal claims was central to the integrity of the system.  In the Court of Appeal’s words:

… the trade-off for employers is a complete immunization from workplace injury claims.

In my view, it would undermine the core policy of the scheme to have employers exposed to lawsuits based on the scope of compensable claims afforded to workers under the legislation.  This would result in uncertainty and a patchwork system of compensation.  It would result in a proliferation of litigation to determine what is and what is not covered by the scheme in the context of the protection afforded to employers.

The Court found that the determination of whether an injury arose out of and in the course of employment was a question of fact in most cases including the present.  In this case it was indisputable that the injury arose out of and in the course of employment.  The claim for workers’ compensation was simply denied because of another factual finding that the injury was foreseeable.

Impact on Bill 14 claims:  With respect to the expanded scope of mental disorder claims pursuant to Bill 14, there will still be many claims that are denied by WorkSafeBC despite that a mental disorder arose out of and in the course of employment.  For example, the Board will be making factual determinations as to whether “events” are traumatic and “stressors” are significant.  The Board will also be making factual determinations about whether a claim is excluded because the event or stressor arose from a management or supervisory decision about the workers’ employment.  All of these determinations could disentitle a worker to compensation yet their mental disorder arose out of and in the course of employment, so any legal action should be statute-barred according to the Downs’ decision.

Bottom line:  Employee court claims against employers alleging any kind of harm was caused by conduct arising out of or in the course of employment should be defending by asserting the section 10 bar under the WCA and seeking section 257 certificates from the WCAT.

Personal note:  My son was born September 19, 2012.  He joins his big sister and very happy parents.

Arbitration: The Union (COPE, 378) claimed that some of its members were working hours in excess of their regular negotiated hours without receiving overtime pay.   ICBC had an unwritten policy that specified that employees would not be paid for overtime unless it was authorized in advance by a manager.  ICBC provided evidence that it had repeatedly communicated this policy to employees and the Union.    There was also evidence that some claims adjusters were working beyond their normal scheduled hours even when directed to stop by management.

Unfortunately, the policy was not a term of the collective agreement and the Arbitrator concluded that mandatory pre-approval in order to be paid for overtime was not consistent with the language in the agreement which simply stated that all time in excess of regular hours “shall” be paid at overtime rates.    The Arbitrator distinguished prior decisions that denied similar grievances.  In one leading decision there was a provision that set regular work hours but it did not state that time worked beyond the regular work hours had to be paid at overtime rates.  Significantly, the collective agreement also clearly retained management rights over the scheduling of overtime at the employer’s “discretion”.   The Arbitrator in the ICBC case also found that the Union’s grievance was successful on the basis that ICBC had been unjustly enriched by obtaining the benefit of the overtime work without payment to the employees involved.

The Arbitration reinforces that employers are responsible for ‘baby-sitting’ adult employees.  In fact, the Union provided a number of examples of steps ICBC could have taken to ensure that no unauthorized overtime was worked including direct monitoring of employees’ hours and “the Employer could have configured the computers of specific individuals to restrict computer use only during their “log on” hours or any other similar mechanism to restrict the use of computers for people who sought to work beyond their regular scheduled hours.”  Perhaps ICBC will resort to a more traditional management tool and simply discipline regular offenders who disobey a direct order not to leave their desk at the end of their shift.

Unionized employers need to either:  (1) ensure their collective agreement language or enforceable policies expressly provide that overtime that is not pre-authorized will not be paid; or (2) take whatever means necessary to ensure that unauthorized overtime is not worked.

Non-union: In the non-union setting, employers also must ensure that employees are not working overtime unless the employee will be paid for it.  The Employment Standards Act of B.C. protects non-union workers through section 35(1) which states that “an employer must pay an employee overtime wages … if the employer requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week.”  Therefore, non-union employers should:

• Have provisions in employment letters/contracts that state overtime must be authorized in advance to be paid.
• Have policies that employees sign off that state the same.
• Have a system in place to monitor whether employees are working outside their scheduled hours.
• Do not permit employees to work beyond scheduled hours unless overtime is paid or an authorized time bank is in place.

Non-union employers should also be aware that salaried employees who have normal or regular hours expressed or implied in their employment contracts pose a risk if working beyond those hours as part of their regular salary.  This risk can be addressed with appropriate contractual language.

Bottom line:  If your employees are working unauthorized overtime then you are at risk.

Complex claims:  The Policy recognizes that mental disorder claims pose much greater challenges with adjudication because of the potential host of factors that may cause a mental disorder such as personal stressors, non-workplace injuries, non-workplace health conditions and work-related stressors.  Unwinding this matrix of potential causes commences with a proper psychiatric (DSM) diagnosis by a registered psychiatrist or psychologist – previously a family physician could make the diagnosis.  It will be important for the Board and employers which are monitoring claims to understand that a DSM diagnosis requires the medical assessor to undertake a thorough review of all potential past and present medical and non-medical causes of the mental disorder as part of a proper multi-axial diagnostic approach.

Events & stressors: Mental disorders that arise as a result of an otherwise compensable physical injury or an acute reaction to a single sudden and unexpected traumatic event have always been compensable.   Now, mental disorders are also compensable if they arise from (1) one or more work-related traumatic event(s) or (2) significant work-related stressor(s) including bullying & harassment.  In either case, the Board will consider the subjective perceptions of the claimant but the Board will also require objective verification that such events or stressors are specifically identifiable.  It is crucial that employers carry out thorough investigations whenever a complaint or potential complaint of a traumatic event or significant work-related stressor arises.  This requires training of front-line supervisory personnel to proactively assess and respond to circumstances that could lead to mental disorder claims or allegations that the employer is not providing a safe workplace due to stressors such as bullying and harassment.

The Policy describes that traumatic events are emotionally shocking events that are unusual and distinct from the duties and interpersonal relations of the employment.  Significant work-related stressors must be excessive in intensity and/or duration from what is experienced in the normal pressures or tensions of a worker’s employment.  Therefore, employers should identify throughout their workplace the usual duties, events, interpersonal relations and stressors that are encountered by employees working in different positions.

Bullying & Harassment: With respect to claims that bullying and harassment at the workplace was the cause of a mental disorder, the Policy states that interpersonal conflicts are not normally the basis of a compensable claim.  This is consistent with previously established general law and policies around bullying and harassment.  It is only if interpersonal conflict rises to the degree of being abusive or threatening that bullying and harassment is potentially at issue.

Labour relations exception: The other very important exception under the legislation and described further by the Board’s policy is that the legitimate exercise of management and supervisory rights and direction of the workforce is not compensable even if this is asserted to be a significant stressor by a worker.  The legislation itself speaks to examples such as changes of work to be performed, discipline and termination.  The Policy adds another non-exhaustive list of examples.  Again, if the supervisory direction is carried out in an abusive manner then an employer will be at risk of a compensable claim or breaching OHS obligations (once finalized by the Board).   Supervisors can have different styles that are lawful but training of what type of conduct crosses the line to abuse is important.  It is also recommended that employers have at least two representatives participating in any sensitive interaction with a subordinate such as poor performance reviews, coaching, disciplinary and investigation meetings.  Further, every policy on personal harassment, respectful workplace, or bullying & harassment should include all of the exceptions identified above so that workers understand that certain conduct is not a valid basis for a claim.

Work-related: The Policy treats mental disorder claims like physical injuries caused by a work-related incident in requiring a determination as to whether the event or stressors (1) occurred at a time, place and during an activity that is work-related and (2) are the cause of the mental disorder.  The cause component requires an assessment of whether personal stressors and non-workplace injuries or health conditions are involved.  It is expected that most disputes due to the expanded coverage will revolve around the causal test for significant work-related stressors.  Mental disorders will not be compensable unless a significant work-related stressor(s) is the predominate cause(s) of the mental disorder.  The Policy describes predominate as being the main or primary cause.  It does not define whether this means that a work-related stressor must be the majority cause (50% plus 1) of the mental disorder to be compensable.  Therefore, it is still to be determined on a case by case basis which mental disorders that are caused by a mixture of issues will be compensable.  For example, a mental disorder that is determined to be caused 30% by personal stressors, 30% by non-workplace injury and 40% by work-related stressors.  In this example, the work related stressors are the largest percentage cause but still not the primary cause when using a majority cause view.

Bottom line:  The scope of mental disorder claims has expanded but there are important exceptions in the legislation and Policy and checks and balances available to employers to minimize the risk of compensable claims through risk assessment in the workplace, proactive prevention strategy, implementation/amendment of appropriate policies and procedures, thoroughly investigating the alleged causes of mental disorders and other potential causes and examining the medical diagnosis where appropriate.  I will discuss more on prevention strategy when I examine the proposed OHS policies in another post.