



COURT OF APPEAL FOR ONTARIO

CITATION:
Blue
    Mountain Resorts Limited v. Ontario (Labour) , 2013 ONCA 75

DATE: 20130207

DOCKET: C54427

MacPherson, Armstrong and Blair JJ.A.

BETWEEN

Blue Mountain Resorts Limited

Applicant (Appellant)

and

Richard Den Bok, The Ministry of Labour and The
    Ontario Labour Relations Board

Respondents (Respondents)

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

Heard: September 27, 2012

On appeal from the judgment of The Divisional Court (Justices
    Janet Wilson, Katherine E. Swinton, and Wailan Low), dated May 18, 2011, with
    reasons reported at 2011 ONSC 3057, affirming a decision of the Ontario Labour
    Relations  Board, dated March 23, 2009.

R.A. Blair J.A.:

Overview

[1]

On December 24, 2007, a guest at Blue Mountain Resorts died while
    swimming in an unattended indoor pool at the resort.  The issue on this appeal
    is whether Blue Mountain was required to report this 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
Occupational
    Health and Safety Act
, R.S.O. 1990, c. O.1.

[2]

Blue Mountain takes the position that it is not required to report deaths
    or critical injuries to guests at its recreational facility because the
    facility is not predominantly a workplace and a worker was not present at the
    site when the injury incurred.  However, the respondent, Mr. Den Bok  an
    inspector under the Act  took the view that reporting was required, and issued
    an order to that effect, along with other related orders.  The Ontario Labour
    Relations Board upheld the order.

[3]

An application for judicial review from that order was dismissed by the
    Divisional Court.  It found the Boards determination that the swimming pool
    was a workplace to be reasonable.  The Board inferred that employees of Blue
    Mountain must have been present at other times in the pool area in order to
    check and maintain it. Similarly, the Divisional Court accepted that it is
    common ground that the swimming pool is a place where one or more workers work.

[4]

For the reasons that follow, I would set aside the decisions of the
    Divisional Court and the Board.  The interpretations they gave to s. 51(1) of
    the Act 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
    Act 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.

[5]

In my view, a proper interpretation of the Act 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 is no such nexus
    here.

[6]

Sometimes a swimming pool is just a swimming pool.

The Legislative Framework

[7]

The relevant provisions of the Act are the following:

Definitions

(1)  In this Act,

employer means a person who employs one or
    more workers or contracts for the services of one or more workers and includes
    a contractor or subcontractor who performs work or supplies services and a
    contractor or subcontractor who undertakes with an owner, constructor,
    contractor or subcontractor to perform work or supply services; (employeur)

worker means a person who performs work or
    supplies services for monetary compensation but does not include an inmate of a
    correctional institution or like institution or facility who participates
    inside the institution or facility in a work project or rehabilitation program;
    (travailleur)

workplace means any land, premises, location
    or thing at, upon, in or near which a worker works; (lieu de travail)



Notice
    of death or injury

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.

Preservation
    of wreckage

(2) Where a person is killed or is 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 an inspector.



Powers
    of inspector

54(1)  An inspector may, for the
    purposes of carrying out his or her duties and powers under this Act and the
    regulations,

(a) subject to subsection (2), enter in or
    upon any workplace at any time without warrant or notice;

(b) take up or use any machine, device,
    article, thing, material or biological, chemical or physical agent or part
    thereof;

(c) require the production of any drawings,
    specifications, licence, document, record or report, and inspect, examine and
    copy the same;



(i) require that a workplace or part thereof
    not be disturbed for a reasonable period of time for the purposes of carrying
    out an examination, investigation or test;

[8]

The word person is not defined in the Act.

Facts

[9]

Blue Mountain Resort Limited owns and operates an all-season resort and
    recreational facility, located on a 750-acre property near Collingwood, Ontario. 
    The resort offers 36 downhill ski runs and other recreational facilities
    including mountain biking trails, a golf course, and an indoor swimming pool.

[10]

When
    the deceased guest was first found, a defibrillator was used in an attempt to
    revive him; it showed no electrical signal and Blue Mountain therefore assumed the
    guest had suffered a heart attack.  As it turned out, he had simply drowned
    while swimming in the pool.

[11]

The
    pool was unsupervised and intended for use by resort guests for recreational
    purposes.  No Blue Mountain employees were working there at the time the
    drowning occurred.

[12]

In
    her reasons, the Board member acknowledged that she had heard no evidence as
    to the work done by the employees of Blue Mountain within the enclosed area of
    the indoor swimming pool where the guest drowned  [and no evidence]  as to
    how regularly employees go into this area  or how many employees enter this
    area.  Based on general and common knowledge, however, she inferred that at
    least one and perhaps more Blue Mountain employees must enter the enclosed area
    of the indoor swimming pool in order to clean the pool and check the water at
    least once, and likely more times, each day.  She therefore concluded that
    [t]he swimming pool thus comprises a part of at least one Blue Mountain
    employees workplace, and that [i]t does not cease to be a workplace
    because the employee in question moves from that area of his or her workplace
    to another area of the same workplace.

[13]

Much
    evidence before the Board  and much argument here and below  were dedicated
    to the broader implications of Mr. Den Boks reporting order for Blue
    Mountains ski operations and for recreational facilities in general in the
    province of Ontario.  Conservation Ontario was granted leave to intervene below
    and Tourism Industry Association of Ontario was subsequently granted leave to
    intervene in this Court because of the perspectives they bring to those broader
    concerns.

[14]

Those
    broader implications and concerns are instructive for the interpretation to be
    given to the language used in s. 51(1) because they provide insight into the
    concerns arising from the Ministrys interpretation of the section.  I will
    outline them briefly.

[15]

In
    peak season, Blue Mountain employs 1,750 staff.  In February, it may have as
    many as 16,000 visitors on a Saturday and another 10,000 on a Sunday.  The
    evidence was that there are approximately 1.5 skiing related incidents for
    every 1,000 visitors at Blue Mountain (the industry average is 2 incidents per
    1,000 visitors).  It follows that there could be as many as 39 occasions on a February
    weekend where  if inspector Den Boks approach is to be adopted  Blue
    Mountain could be required to report to the Ministry.  As the appellant and the
    intervenors point out, s. 51(2) of the Act prohibits the employer from
    disturbing or altering the scene of the occurrence until permission is given by
    an inspector.  Therefore, many ski slopes may have to be closed entirely or in
    part until released by a Ministry inspector.

[16]

Mr.
    Den Boks evidence was that in most cases, such a release will be provided by
    telephone but, if not, within a couple of hours if an inspector had to attend
    the site.  However, the evidence was that such closures would create potential
    hazards for skiers and snow boarders using the runs in winter and for mountain
    bikers in the summer, as well as disruptions to Blue Mountains operations
    generally.

[17]

A
    representative of the Ontario Snow Resorts Association testified before the
    Board.  His evidence was that there were approximately 7,000 accidents at ski
    resorts across Ontario during the 2007-2008 ski season.  His concern was that
    ski patrollers do not have the training to diagnose whether an injury is
    critical or not and that, in many cases, there is no way of making that
    determination at the time of the incident.  Failure to report, however, could
    lead to prosecution under the Act.  He repeated the concern that the
    requirement to preserve the accident scene under s. 51(2) would make ski hills
    very dangerous and difficult for resorts to operate.

[18]

The
    Ministrys requirement that resorts report guest injuries is apparently new. 
    Blue Mountain has been subject to the Ministrys review for 27 years, but has
    never before been required to report such injuries.  The same is true for other
    resorts.  The Ministry explained its shift in policy by saying it was due to a
    number of resorts appearing in its high risk category.

[19]

Here,
    the guest injury occurred in a swimming pool, not on the slopes.  However, the
    foregoing factors ground the concerns of the tourism and recreation industries
    in Ontario with the potential expansion of the Ministrys role in the
    regulation of their affairs.

Analysis

[20]

The
    Ontario Labour Relations Board is an expert tribunal that was interpreting a
    statute within its mandate and engaging its specialized expertise.  The
    Divisional Court was therefore correct in holding that the standard of review
    of the Boards decisions is reasonableness:
Dunsmuir v. New Brunswick
,
    2008 SCC 9, [2008] 1 S.C.R. 190; and
Lennox Drum Ltd. v. Ah-Hone et al.
,
    2010 ONSC 4424, 266 O.A.C. 396 (Div. Ct.), at para. 4.

[21]

The
    concept of reasonableness, for administrative law purposes, was described by
    the Supreme Court of Canada in
Dunsmuir
as a deferential standard.
    Reasonableness is concerned mostly with the existence of justification,
    transparency, and intelligibility within the decision-making process.  While tribunals
    have a margin of appreciation within the range of rational outcomes, a
    reasonable decision is also one that falls within a range of possible,
acceptable
    outcomes which are defensible
in respect of the facts and law (emphasis
    added):
Dunsmuir
, at para. 47.

[22]

The
    appellant and the intervenors argue that the Board and the Divisional Court erred
    in conducting an analysis that focused only on end risks without considering
    whether there was, in the circumstances, any reasonable connection between what
    actually happened and a risk to worker safety at the site.  Counsel submits
    this open-ended approach leads to absurd results, rendering the interpretation
    unreasonable.  I agree.

The
    Boards Interpretation is Unreasonable

[23]

The
    language where a person is  critically injured from any cause at a workplace
    in s. 51(1) of the Act is undoubtedly intended to capture a wide range of
    injury-related occurrences affecting the safety and wellbeing of workers.  As
    the Board member correctly observed, the Act is a remedial public welfare
    statute intended to guarantee a minimum level of protection for the health and
    safety of workers.

[24]

Public
    welfare legislation is often drafted in very broad, general terms, precisely
    because it is remedial and designed to promote public safety and to prevent
    harm in a wide variety of circumstances.  For that reason, such legislation is
    to be interpreted liberally in a manner that will give effect to its broad
    purpose and objective:
R. v. Timminco Ltd.
(2001), 54 O.R. (3d) 21
    (C.A.), at para. 22.

[25]

In
Ontario (Ministry of Labour) v. Hamilton (City)
(2002), 58 O.R. (3d)
    37 (C.A.), at para. 16, Sharpe J.A. reinforced that notion:

The
OHSA
is a remedial public welfare statute intended
    to guarantee a minimum level of protection for the health and safety of
    workers.  When interpreting legislation of this kind, it is important to bear
    in mind certain guiding principles.  Protective legislation designed to promote
    public health and safety is to be generously interpreted in a manner that is in
    keeping with the purpose and objectives of the legislative scheme.  Narrow or
    technical interpretations that would interfere with or frustrate the attainment
    of the legislatures public welfare objectives are to be avoided.

[26]

This
    generous approach to the interpretation of public welfare statutes does not
    call for a limitless interpretation of their provisions, however.

[27]

One
    of the problems with what is otherwise an understandable approach to the interpretation
    of public welfare legislation is that broad language, taken at face value, can
    sometimes lead to the adoption of overly broad definitions.  This can extend the
    reach of the legislation far beyond what was intended by the legislature and afford
    the regulating ministry a greatly expanded mandate far beyond what is needed to
    give effect to the purposes of the legislation.

[28]

Such
    is the case, in my view, with the interpretation given by the Board and the
    Divisional Court to the language of s. 51(1) in this case.

[29]

In
    these circumstances, the principle of statutory interpretation affirming that
    broad language may be given a restrictive interpretation in order to avoid
    absurdity may come into play:
Ontario v. Canadian Pacific Ltd.
, [1995]
    2 S.C.R. 1031, at pp. 1081-82; and
Boma Manufacturing Ltd. v. Canadian
    Imperial Bank of Commerce
, [1996] 3 S.C.R. 727, at para. 109,
per
Iacobucci J.

[30]

The
    central thrust of the Boards reasoning is found at paras. 61 and 75 of its
    reasons:

[T]he purpose of the Act is to provide
    protection to workers  where workers are vulnerable to the same hazards
    and risks as non-workers who attend at a workplace, it is not an absurd result
    for an employer to be required to report when a non-worker suffers a critical
    injury at a workplace.  If the goal is to enhance worker safety by
    alerting the Ministry to hazards in the workplace that could affect workers, a
    provision that requires the reporting of critical injuries suffered by
    non-workers in places where workers work, regardless of whether a worker was
    present at the time and place of the critical injury, is not absurd.



Blue Mountain is a fixed workplace. 
    There is a fixed location to which employees regularly report.  The area
    of the resort where the Blue Mountain employees perform their work functions is
    a workplace  The fact that an employee is not physically present within a
    section of that workplace does not mean that that particular section is not
    part of the workplace during the period when no employees are present.


[31]

There
    are some attractive aspects to this reasoning, to be sure.  I do not quarrel
    with the proposition that workers may be subject to the same hazards and risks
    of death or critical injury as non-workers. When this is the case, an employer
    may be required to report when a non-worker dies or suffers a critical injury
    at a workplace in order to give effect to the purpose of the Act.  The
    Divisional Courts comment in this regard is particularly instructive:

Workers and guests are vulnerable to the same hazards.  The
    purposes and intents of the legislation would be undermined
if a physical
    hazard with the potential to harm workers

and non-workers

alike
was not subject to reporting and oversight. [Emphasis added.]

[32]

I
    do not disagree with that observation.  It is anchored in
a hazard or risk
    that has the potential to harm workers.
However, the conclusions of the
    Board and the Divisional Court are founded on an analysis that has no such
    anchor.  It simply assumes that because an accident has occurred at a place
    where a worker may be at some point in time, the accident becomes a workplace
    accident.  This is apparent from the following statement in the reasons of the
    Divisional Court:

The obligation created by s. 51(1) upon employers to report
    when a person is killed or critically injured
is driven by result rather
    than by causation
.  Hence on a plain reading of the subsection, any event
    resulting in death or critical injury,
even if occurring in circumstances
    having no potential nexus with worker safety
, is reportable so long as they
    occur in a workplace. [Emphasis added.]

[33]

Respectfully,
    I do not agree with that conclusion.  The potential results are too far
    reaching.  Indeed, the Divisional Court recognized, at the close of the
    foregoing passage, that the subsection as interpreted by the Board has a
    potential to reach beyond the ambit of the purposes of the statute.  The
    interpretation is unreasonable for that very reason, in my view.

[34]

Why
    do I say that?

[35]

The
    Boards conclusion  found by the Divisional Court to be reasonable  is
    founded on what is, in effect, an entirely location-based analysis.  It would
    trigger s. 51(1) whenever a non-worker dies or is critically injured at or near
    a place where a worker is working, has passed through, or may at some other time
    work, regardless of the cause of the incident.  The ramifications of this
    interpretation go far beyond what the legislature could have intended and
    beyond what is reasonably necessary to give effect to the purpose and objective
    of the Act or the mandate of the Ministry.  Therefore, while at one level the
    decision may exhibit some degree of justification, transparency and
    intelligibility, as the Divisional Court concluded, it fails to meet the test
    of [falling] within
a range of possible, acceptable outcomes which are
    defensible
in respect of the facts and law (emphasis added):
Dunsmuir
at para. 47.

[36]

Section
    51(1) must be read in light of the subsection that follows it. Both the Board
    and the Divisional Court erred, in my opinion, in declining to consider the
    provisions of s. 51(2) in the interpretation context. They appear to have done
    so because no one alleged that Blue Mountain had failed to comply with that
    provision. However, interpreting the two provisions together is instructive in
    showing how an overly broad interpretation of the reporting obligation in s.
    51(1) can lead to consequences beyond the purposes of the Act.

[37]

Section
    51(2) requires that an injury site be preserved  shut down, in effect  until
    released by a Ministry inspector.  There is evidence to suggest that closures
    to recreational sites such as ski and bike-riding slopes may create hazards to
    other skiers, bikers, and workers alike. The significantly intrusive effect of
    s. 51(2), combined with an overly broad interpretation of the notification and
    reporting requirements of s. 51(1), has the potential to give quite expanded
    powers to the Ministry and its inspectors.

[38]

A
    consideration of some possible outcomes will bear this out.  As the Supreme
    Court of Canada confirmed in
Canadian Pacific Ltd.
, at pp. 1044-45, the
    consideration of hypotheticals is useful when interpreting the meaning of
    legislation.

[39]

Counsel
    for the Ministry conceded before the Board that on the Ministrys
    interpretation of the reporting section he could not think of any location in
    the province of Ontario, except perhaps an abandoned woodlot, that would not be
    classified as a workplace.  In this Court, counsel and his client could not
    think of any examples.  That is not a defensible outcome.

[40]

Consider
    the following, as well.

[41]

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).

[42]

One
    can envision endless examples that would be caught by the Boards interpretation,
    all without any causal relationship with a workplace safety issue.  Would
    parents have to report to the Ministry if their child were injured at home
    because they had hired a nanny?  Does a roller coaster become a workplace
    when a guest is injured while riding on it?  Because hotel employees enter
    guest rooms, does a hotel room become a workplace when a guest dies of a
    heart attack or a drug overdose, or is murdered?

[43]

As
    noted above, where there are competing plausible constructions, a statute
    should be interpreted in a way that avoids absurd results:
Rizzo &
    Rizzo Shoes Ltd
., [1998] 1 S.C.R. 27, at para. 27;
Boma Manufacturing
,
    at para.109; and
Canadian Pacific
, at pp. 1081-82.  In
Rizzo
,
    at para. 27, Iacobucci J. states that [i]t is a well established principle of
    statutory interpretation that the legislature does not intend to produce absurd
    results.

[44]

The
    consequences or results of the Divisional Courts and the Boards decision are
    incompatible with the objects of the Act and the enforcement provisions of s.
    51(1), in my opinion.  Their interpretation extends the scope of the Act and
    has the potential to give the Ministry and its inspectors significantly
    intrusive powers far beyond what is reasonably required to accomplish its
    purpose of preserving and promoting worker safety in the workplace. The
    interpretation is therefore unreasonable.

The
    Proper Interpretation of s. 51(1)

[45]

That
    being the case, it falls to this Court to determine the proper interpretation
    of s. 51(1).  In doing so, we must have regard to the words of that provision
    in their grammatical and ordinary sense and in their context, read harmoniously
    with the scheme of the statute as a whole, the purpose of the statute, and the
    intention of the legislature:
Rizzo
at para. 21;
R. v. Gladue
,
    [1999] 1 S.C.R. 688 at para. 25; and
Bell ExpressVu Limited Partnership v.
    Rex
, [2002] 2 S.C.R. 559 at para. 26.

[46]

As
    I noted earlier in these reasons, the provisions of the Act are to be
    interpreted generously, but a generous approach to the interpretation of public
    welfare statutes does not justify a limitless interpretation of their
    provisions.

[47]

With
    that in mind, I would not interpret the language of s. 51(1) of the Act in a
    way that would give it the almost limitless scope flowing from the
    interpretation adopted by the Board and the Divisional Court.  Nor would I give
    it either the narrow interpretation favoured by the appellant, which would
    limit the application of the notice and reporting requirements only to
    situations where a worker is actually present at the scene of the occurrence,
    or the interpretation that a non-worker can never be a person within the
    meaning of s. 51(1).

[48]

Textually
    speaking, taking the language of s. 51(1) of the Act at face value, the guest
    who died in the swimming pool might be seen as someone who died in a
    workplace.  Blue Mountain has approximately 1,750 employees working at its 750-acre
    complex, and some of them may be in the pool area at some time during the day
    to perform maintenance services.  The language of s. 51(1), read only in its
    grammatical and ordinary sense, is very broad.

[49]

Contextually
    and purposively speaking, however, s. 51(1) is not engaged unless there is some
    reasonable nexus between the hazard giving rise to the injury and a realistic
    risk to worker safety issue at the pool or the resort.

[50]

This
    restricted interpretation is consistent with the oft-cited observation of Lord
    Wensleydale in
Grey v. Pearson
(1857), 29 L.T.O.S. 67, at p. 71
    (H.L.):

In construing wills, and indeed statutes, and all written
    instruments, the grammatical and ordinary sense of the words is to be adhered
    to, unless that would lead to some absurdity or some repugnance or
    inconsistency with the rest of the instrument, in which case the grammatical
    and ordinary sense of the words may be modified, so as to avoid that absurdity or
    inconsistency,
but no further
. [Emphasis added.]

[51]

It
    is also consistent with the principle that broad language in a statute may be
    given a somewhat restricted interpretation where necessary in order to avoid
    absurdity and to give the words their appropriate meaning, having regard to
    their context, the purpose of the Act, and the intention of the legislature.  To
    quote Gonthier J. in
Canadian Pacific Ltd.
, at p. 1082:

One method of avoiding absurdity is through the strict
    interpretation of general words
Driedger on the Construction of Statutes
(3rd ed. 1994) states the relationship between the absurdity principle and
    strict interpretation as follows, at p. 94: Absurdity is often relied on to
    justify giving a restricted application to a provision.

[52]

It
    is within this framework, then, that the words person, from any cause and
    workplace in s. 51(1) must be examined.  In their submissions, the parties
    and intervenors focused on the meaning of the words person and workplace. 
    Certainly the contours of these words, particularly workplace, need to be
    drawn.  It seems to me, however, that the potentially all-embracing expression
    from any cause is the core phrase calling for a restrictive interpretation in
    order to give the language of s. 51(1) its proper meaning.

[53]

I
    agree with the Board and the Divisional Court that the word person in s. 51(1)
    is not synonymous with worker.  Had the legislature intended that to be the
    case it would simply have used worker instead of person.  I think it is
    clear that the legislature intended the reporting requirement to extend beyond
    injuries to workers themselves and to encompass  as the Divisional Court
    observed in the passage cited above  physical hazards with the potential to
    harm workers and non-workers alike.  That is consistent with the purposes and
    objectives of the Act.

[54]

But
    it does not follow that any death or critical injury involving any person at a
    place frequented, or sometimes frequented, by workers is caught by s. 51(1). 
    To give the words killed or critically injured
from any cause
 such
    an expansive interpretation may well lead to absurd results, as we have seen. 
    That is why a reportable occurrence 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 the site of the incident.

[55]

This
    somewhat limiting interpretation of the words from any cause is key to the
    interpretation of s. 51(1).  It is broad enough to capture worker safety
    related incidents and to give effect to the purpose of the Act.  Yet it is not
    so broad as to lead to absurd consequences or to engage the intrusion of the
    state where that intrusion is unnecessary to achieve that purpose.  It grounds
    the limiting interpretation of s. 51(1) in cause rather than location.

[56]

That
    said, the death or critical injury with the required nexus to worker safety
    must still occur at a location the Act describes as a workplace.  Once the
    words from any cause have been given their proper meaning, however, the
    meaning of workplace,
as defined in the Act becomes
    clearer.  To reiterate, workplace is defined as any land, premises, location
    or thing at, upon, in or near which a worker works; (lieu de travail).

[57]

The
    Board and the Divisional Court concluded that the word works in that
    expression was not confined to a place where a worker
is working
, but
    could extend to a place where a worker sometimes worked.  I do not disagree
    that s. 51(1) may be engaged where no worker is present at the time the injury occurs. 
    I would simply say that when the legislature referred to a place where a
    worker works, it must have intended that place to be one where a worker is
    carrying out his or her employment duties at the time the incident occurs, or one
    where a worker might reasonably be expected to be carrying out such duties in
    the ordinary course of their work.

[58]

This
    is consistent with the view that a workplace may not necessarily be a fixed
    location, but may in some circumstances travel with a worker, a view that makes
    some sense in todays world of mobility, and which the parties appear to accept:
    see
R. v. Port Colborne (City)
, [1992] O.J. No. 2555 (C.J.).

[59]

In
    summary, the notification and reporting requirements of s. 51(1) of the Act are
    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).

[60]

The
    guest drowning in the Blue Mountain swimming pool does not meet the foregoing
    criteria.

[61]

There
    was no evidence that the Blue Mountain guests death in the swimming pool was
    caused by any hazard that could affect the safety of a worker, whether present
    or passing through.  All that is known is that the guest either had a heart
    attack (the first diagnosis) or drowned while swimming (the final report).  The
    purpose of the Act is to further worker safety; it is not to capture death by
    natural causes.  If there is a need for supervision at the pool to ensure the
    safety of Blue Mountains guests, that may raise other issues for Blue Mountain,
    but it does not give rise to considerations of worker safety.  It is highly
    unlikely that a Blue Mountain employee is going to drown while swimming in the
    pool in the course of his or her employment duties.

[62]

The
    interpretation I place on s. 51(1) is consistent with the Acts purpose and
    objective of protecting the health and safety of workers.  It anchors worker
    safety to a hazard with the potential to harm workers, thereby placing some
    constraints on the scope of the notification and reporting requirements of the
    Act. By doing so, it also honours the legislative and external context in which
    those requirements operate.

[63]

Part
    of the context within which s. 51(1) must be interpreted is reflected in the
    history of the legislation.  The
Occupational Health and Safety Act
came into effect in 1978.  It repealed a number of then-existing pieces of
    legislation dealing with the protection of workers in factories and mines and
    on construction sites, and consolidated them into one Act.  The history behind
    the legislation was conveniently summarized by this Court in
R. v. Wyssen
(1992), 10 O.R. (3d) 193 (C.A.), at p. 198-99:

The Act was passed in 1978. Intense public discussion of
    industrial safety was stimulated by the 1976 Report of the Royal Commission on
    the Health and Safety of Workers in Mines (the Ham Report).  Bills relating to
    industrial safety were introduced in the legislature in 1976, 1977 and 1978
    when the Act was finally passed.  The object of the legislative proposals was
    to achieve safety in the workplace and their scope greatly expanded before the
    Act was passed in 1978.

The statute was described by the Minister of Labour as a
    comprehensive omnibus act which would consolidate all existing occupational
    health and safety legislation: Debates, Legislative Assembly of Ontario,
    October 18, 1977, p. 856.  The Act repealed five statutes and parts of two
    others dealing with occupational health and safety.  The statutes, which the
    Act replaced, were limited almost completely to the protection of employees
    with only minimal expansion of protection beyond the common law master and
    servant relationship.

[64]

The
    legislation that the Act replaced focused on the safety of workers in
    workplaces such as factories, shops, offices, mines and construction sites.  While
    I think it is evident that the scope of the present Act is not confined to
    industrial or commercial sites of that nature, it is instructive to keep those
    roots in mind.  In any event, the emphasis of the present Act is clearly on
    protecting the safety of workers in the workplace, a purpose that was confirmed
    by this Court in
R. v. Timminco
, at para. 22:

The broad purpose of the statute is to maintain and promote a
    reasonable level of protection for the health and safety of workers in and
    about their workplace.

[65]

It
    follows that it is not part of the purpose and objective of the Act to protect
    non-workers.  The focus is on the worker, the employer and the workplace, and
    injuries that pose a risk in that connection.

Conclusion and Disposition

[66]

For
    the reasons I have explained, the interpretation given to s. 51(1) of the Act
    by the Board and the Divisional Court was unreasonable.  Therefore it cannot
    stand.  I would interpret s. 51(1) to provide that the Ministry must be
    notified of a death or critical injury at a site, and the requisite report
    provided, where there is some reasonable nexus between the hazard giving rise
    to the death or critical injury and a realistic risk to worker safety at a
    workplace.  A workplace is where (i) a worker is carrying out his or her employment
    duties at the time the incident occurs, or, (ii) where a worker might
    reasonably be expected to be carrying out such duties in the ordinary course of
    his or her work.

[67]

It
    may be that a literal reading of s. 51(1) would suggest a broader
    interpretation.  In spite of that, however, the decisions below would lead to
    absurd results and accordingly do not [fall] within a range of possible,
    acceptable outcomes which are defensible in respect of the facts and law:
Dunsmuir
,
    at para. 47.  The interpretation I adopt conforms to the purpose and objective
    of the Act and is consistent with the provisions of the Act read as a whole,
    even if the words of s. 51(1) alone may suggest the alternative interpretation:
Boma Manufacturing Ltd.
, at para. 109.

[68]

Accordingly,
    I would allow the appeal, set aside the decision of the Divisional Court and allow
    the application for judicial review.  In the result, the order of inspector Den
    Bok requiring Blue Mountain to report to the Ministry the death of the Blue
    Mountain guest in the swimming pool on December 24, 2007, is also set aside.

[69]

The
    appellant is entitled to its costs of the appeal, payable by the respondent
    Ministry of Labour, and fixed in the amount of $5,000 inclusive of
    disbursements and all applicable taxes.  There will be no costs with respect to
    the Board or the intervenors.

R.A. Blair J.A.

I agree J.C.
    MacPherson J.A.

I agree R.P.
    Armstrong J.A.

Released: February 7, 2013


