The Regional Municipality of Hamilton-Wentworth v. Ministry of Labour, 1998 CanLII 18285

Ontario Labour Relations Board

[1998] OLRB REP. JULY/AUGUST 709

1570-98-HS The Regional Municipality of Hamilton-Wentworth, Applicant v. Ministry of Labour, Responding Party

BEFORE: Lee Shouldice, Vice-Chair.

DECISION OF THE BOARD; August 20, 1998

Decision

1. This proceeding consists of a request by the applicant that an order made by an Occupational Health and Safety Inspector in Field Visit 795312 (dated July 16, 1998) be suspended, pending the hearing of the merits of the appeal, in accordance with section 61(7) of the Occupational Health and Safety Act. By way of decision dated August 4, 1998, the parties were directed to file with the Board their submissions regarding the appropriate disposition of the suspension request. As noted by the Board in the previous decision, a hearing is usually not held to dispose of suspension requests.

2. The applicant did not take the opportunity to file with the Board any submissions beyond those dated July 28, 1998. The responding party also did not file any submissions with the Board prior to close of business August 18, 1998, which was the time within which any submissions were to be provided. Accordingly, I have reached my decision based upon the materials initially provided by the applicant.

3. The order in question is directed to the applicant, and affects three different waste transfer stations operated by it. The text of the order is as follows:

Pursuant to the Ind. Reg. 851/90 Sec. 4(1)(e) the owner shall ensure that NO children under the age of 14 are allowed in or about the workplace. This order to be complied by 5 p.m. 16 July 98. On visits to the Transfer Stations located at 37 Kilbride St., Hamilton; Olympia Dr., Dundas; and Kenora Ave., Hamilton public with small children were observed - the children wandered unsupervised in the immediate area of operating heavy equipment including front end loader(s) and garbage haulers. This order applies to Transfer Stations located at 37 Kilbride St. Hamilton; Olympic Dr. Dundas; Kenora Ave North.

4. The regulatory reference contained in the order is to the Industrial Establishments Regulation 85 1/90, issued under the authority of the Occupational Health and Safety Act. Section 4(1) of that regulation provides as follows:

Subject to subsection (2), the minimum age of,

(a) a worker; or

(b) a person who is permitted to be in or about an industrial establishment,

shall be,

(c) sixteen years of age in a logging operation;

(d) fifteen years of age in a factory other than a logging operation; and

(e) fourteen years of age in a workplace other than a factory.

Section 4(2) of the Act provides for certain exceptions to the above limitations:

Clause 1(b) does no apply to a person who,

(a) while in the industrial establishment, is accompanied by a person who has attained the age of majority;

(b) is being guided on a tour of the industrial establishment;

(c) is in an area of the industrial establishment used for sales purposes; or

(d) is in an area of the industrial establishment to which the public generally has access.

5. The applicant bases its suspension request upon sections 4(2)(a) and (d) of the Regulation. With respect to its submissions respecting section 4(2)(a) of the Act, the applicant asserts that persons who come to the transfer stations must do so in a vehicle which suggests that the driver of the vehicle (and therefore the person accompanying any children) is at least 16 years of age. It is also submitted that people attending at the transfer stations tend to be home owners, and therefore it can be assumed that they have reached the age of majority. With respect to the other basis for appeal, the applicant asserts that the transfer stations were opened in 1978, and that since that time the public has always had access to the stations for the purpose of disposing of solid wastes.

6. Three factors have generally been considered by the Board when determining whether a suspension of an order is appropriate in the circumstances:

(a) whether the suspension of the order (or, alternatively, the failure to suspend the order) would endanger worker safety;

(b) the prejudice to the parties if the order is or is not suspended; and

(c) whether there is a strong prima facie case for a successful appeal of the order.

It is fair to say that the onus lies upon the party desiring the suspension order to establish that such an order ought to issue. Furthermore, the decision of Adjudicator Herman in General Motors of Canada Limited (File No. 3666-96-HS, decision dated June 2, 1997) stands for the proposition that a certain degree of deference must be afforded to decisions made by inspectors for the purpose of considering the suspension of those orders pending their appeal. In the absence of some persuasive reason to interfere with that order pending the hearing of the appeal on the merits, the original order ought not to be suspended.

7. In light of the material filed with the Board, I have determined to not suspend the order made by the Inspector, pending the disposition of the merits of the appeal. I reach this conclusion with some reluctance, because it appears to me that there is a strong argument that the order of the Inspector in effect ignores the exception described by section 4(2)(a) of the regulation. That is, rather than ordering that no persons under the age of 14 be permitted in the transfer stations unless accompanied by a person who has attained the age of majority, the Inspector has merely prohibited the presence of persons under the age of 14. It appears to me that there is a strong prima facie argument that the Inspector has issued an order beyond the parameters provided by the regulation, at least as it currently reads. A similar argument can be made with respect to section 4(2)(d) of the regulation, though it is not quite as persuasive, in my view.

8. That being said, certain other factors militate against the suspension of the order. First, although the safety of workers is not directly in question, the safety of the public is; in particular, children who attend at the transfer stations with or without adequate supervision. There could potentially be an effect on the health and safety of workers should any one of these children cause or contribute to an industrial accident.

9. Furthermore, there is nothing relied upon by the applicant to suggest that there is any prejudice in maintaining the order in effect pending the litigation of its validity. The decision of August 4, 1998 invited the applicant to provide the Board with any evidence it had suggesting that some prejudice would result to it should the suspension request not be successful. At no time has the applicant identified any prejudice it would face should it be required to ensure that young children be excluded from the transfer stations in question, as directed by the Inspector.

10. Keeping in mind the deference to which the Board gives orders issued by Inspectors who attend at worksites around the province, the concern I have regarding the scope of the order is outweighed by the severe health and safety consequences which could result to the public and the workers at the transfer stations from a suspension of the order, and the failure of the applicant to identify any prejudice it would face should the order be maintained.

11. In the circumstances, this application is dismissed. Board File 1568-98-ES is to be forwarded to the Registrar for scheduling.