Duny Machine Limited v. Joe Webster, 1999 CanLII 19507

Ontario Labour Relations Board

[1999] OLRB REP. SEPTEMBER/OCTOBER 818

1680-99-HS Duny Machine Limited, Applicant v. Joe Webster, Worker Health & Safety Representative, and Ministry of Labour, Responding Parties

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; October 12, 1999

1. This is an application pursuant to section 61(7) of the Occupational Health & Safety Act, R.S.O. 1990, c.0.l ("the Act") for a suspension of an Inspector's order. The order was made in Field Visit/Report 863327 on August 30, 1999. The applicant has filed an appeal of this order and seeks a suspension of that order pending the outcome of its appeal.

2. The applicant operates a machine shop. The particular equipment in question are the screw machines, some manufactured by "Davenport" and some by "New Britain". The machines are referred to by the names of their manufacturers. The Inspector described the machines as follows:

"The New Britain machines are provided with oiled deflector plates which can be removed easily, allowing access to various pinch points. The rotating tubes are covered, but the covers can be opened easily and are not interlocked to stop the machines when opened.

The Davenport machines are provided with sliding doors which are not interlocked and the rear door must be opened to allow adjustments while the machine is running. The rotating tubes are covered and the hinged top covers are provided with interlocks which stop the rotation when opened".

3. His order to the applicant is as follows:

"All machines in the workplace require guarding in accordance with the Industrial Regulations. Because of the number and complexity of the machines in the workplace, guarding orders are issued for one Davenport and one New Britain machine to enable the employer to develop implement guards that are practicable and effective. Upon completion of the guarding of the two machines indicated in the orders, the employer will be ordered to develop a compliance plan for guarding of the rest of the screw machines".

4. The statutory context of this order is found in section 25(1)(a) of the Act and sections 24-26 of the "Industrial" Regulation, being RRO 1990 851, sections 24-26. These provisions provide as follows:

5. (1) An employer shall ensure that,

(a) the equipment, materials and protective devices as prescribed are provided;

Machine Guarding

24. Where a machine or prime mover or transmission equipment has an exposed moving part that may endanger the safety of any worker, the machine or prime mover or transmission equipment shall be equipped with and guarded by a guard or other device that prevents access to the moving part.

25. An in-running nip hazard or any part of a machine, device or thing that may endanger the safety of any worker shall be equipped with and guarded by a guard or other device that prevents access to the pinch point.

26. A machine shall be shielded or guarded so that the product, material being processed or waste stock will not endanger the safety of any worker.

27. The orders were made specifically under section 25 of the Regulation. The applicant's submissions are as follows:

(a) Section 25 simply says that there must be a guard in place. It does not say that the guard must be locked or that it be a lock-out device.

(b) The applicant states it has experimented with the Inspector's order and alleges a sharp decrease in deficiency (although no details were supplied to back up the claims). The applicant asserts that this poses an unacceptable cost for its operations which will decrease its competitiveness and its ability to survive in the market.

(c) The applicant also included letters of support from persons it identifies as employees who operate equipment.

6. The Ministry has filed submissions opposing the request for a suspension of the order, focusing primarily on its assertion that the applicant has not demonstrated that it has a strong prima facie case on the appeal.

7. In dealing with a request to suspend an order, the Board's approach is set out succinctly in The Regional Municipality of Hamilton-Wentworth, [1998] OLRB Rep. July/Aug. 709:

8. 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.

8. In reviewing the materials filed with the Board, I have determined not to suspend the order made by the Inspector pending the disposition of this appeal. The first concern of the Board in dealing with a suspension is whether or not the suspension of the order would endanger worker safety. Since this is a suspension application rather than the merits of the appeal, I am dealing with it on the basis of the submissions made by the applicant and the Ministry. The applicant's submissions are virtually silent on this issue. It is self-evident that employees who must work in or near moving machinery are performing inherently dangerous work. The Regulations speak for themselves. Indeed, they have been the subject of comment by a number of courts and adjudicators, as well as by this Board. In R. v. Cancoil Thermal Corp. (1986) 1986 CanLII 154 (ON CA), 27 CCC (3d) 295 (OCA) the Ontario Court of Appeal dealing with section 24 of the Regulations said as follows:

A guard is a protective device designed to prevent personal injury to the operator of a machine which is potentially dangerous because of the presence of an exposed moving part. Such a guard or protective device must be capable of preventing any intentional or inadvertent physical access to the potentially dangerous moving part

Given the wording of the Regulations, which do not provide for any exceptions, and the restatement of section 24 by the Court of Appeal, I can only conclude that the legislative policy set out in the Regulations is that working in or near machinery with moving parts is inherently dangerous. The applicant's submissions amount to little more than an assertion that he disagrees with that proposition. The applicant then has provided no evidence that the suspension of the order would not endanger worker safety in a situation which is, apparently, inherently dangerous.

9. The applicant has also not demonstrated a strong prima facie case that it is likely to succeed on its appeal. The Cancoil Thermal case, cited above, is one of several decisions. The policy set out in the Regulations has been applied even in situations where the facts giving rise to an accident, or potential future accident, are uncommon occurrences in the workplace: see Ford Motor Company of Canada (January 23, 1996, Randall, OOHSAP 5). On this issue as well, the applicant has failed to demonstrate that the order should be suspended.

10. Finally, the applicant complains of decreased efficiency. The Inspector gave the applicant a choice of using locked-door guards or a complete lock-out system. If the applicant adopts the less onerous method of locking what it says are existing guard doors, there can be little decrease in efficiency. Whether a lock-out system is necessary depends on the facts of each case (see the apparently opposite results in General Motors (October 1, 1991, Blair, decision 11/91, and R v. Kendall Canada Inc. (unreported January 30, 1992, Ontario Court (Provincial Division) Dnieper J.) ). The Inspector is not at this time requiring a lock-out device, although the applicant has yet to demonstrate any modification as required by the Inspector.

11. The real issue for the applicant appears to be the requirement that the guard be in place at all times while the machinery is running. I do not doubt that it is less efficient to set up and prime the machine when it is not operating, as opposed to when it is. It is also more dangerous for any employee to put his or her hands into a machine with moving parts. In this case the safety of employees in the face of the clear direction of the Regulations is of greater importance than any decrease in efficiency. Again, we have no data to back up the figures claimed by the applicant.

12. Further, the Inspector has demonstrated some considerable sensitivity to the issue. He has ordered initially that only one of each of the two types of machines be modified to determine the details of how his order should apply to each of the machines. The applicant would be well advised to devote its energies to determining the most efficient way to comply with the order.