The Ontario Ministry of Labour issued orders against the employer for failing to report this death under subsection 51 (1) of the Occupational Health and Safety Act.

The employer argued that they should not be required to report the death of a guest in a swimming pool because the pool was not a “workplace,” and there was no “worker” even present when this tragic accident occurred.

The Ministry of Labour disagreed and issued orders against the employer.

Throughout Ontario, employers were stunned when both the OLRB and the Divisional Court upheld the orders of the MOL.

With the Dofasco case in 2007, the Court of Appeal told us that “due diligence” required employers to have eyes on the backs of their heads as they contemplated even the “rogue and defiant worker” in their legal, due diligence responsibilities.

The Blue Mountain decisions by the MOL, the OLRB and the Divisional Court resulted in a shuddering wave of resignation by employers.

The Court of Appeal for Ontario has thankfully restrained and limited the broadening reach of the MOL in saying that their interpretation of this section “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. “

They set aside the decisions of the Divisional Court and the OLRB. Congratulations to Blue Mountain Resort for appealing those incorrect decisions. This is a great win for employers.  

You can read the decisions here:

• Blue Mountain Resorts Court of Appeal [2013]
• Blue Mountain Resorts Divisional Court [2011]
• Blue Mountain Resorts MOL & OLRB [2011]