[1999] OLRB REP. JANUARY/FEBRUARY 70
0364-97-HS; 0365-97-HS; 3235-97-HS Robert Gordon and Ontario Public Service Employees Union, Appellants v. Ministry of Solicitor General and Correctional Services (Whitby Jail), Ministry of Labour and Michael Budlovsky, Responding Parties; Ontario Public Service Employees Union and OPSEU Local 359, Appellants v. Ministry of Solicitor General and Correctional Services (Whitby Jail), Ministry of Labour and Rick Richmond (Inspector), Responding Parties
Health and Safety - Practice and Procedure - Applicant appealing decisions made by inspector finding that work refusals arising from staffing decisions at provincial jail not covered by section 43 of the Occupational Health and Safety Act (OHSA) and also appealing failure or refusal of inspector to issue formal decision in investigation as to whether employer violated section 25(2)(h) of the OHSA by the manner in which it assigned staff at the jail - Board dismissing preliminary motions to dismiss the appeals on the grounds that appeals premature and do not establish prima facie case
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Ronald Davis, Nick Tefoglou and Robert Gordon for the appellant; Laura Williams and Rick Marrison for the Ministry of the Solicitor General and Correctional Services (Whitby Jail); Andrea Esson, Paul Eddy, Rick Richmond and Mike Budlovsky for the remaining responding parties.
DECISION OF THE BOARD; Februry 1, 1999
These are three appeals filed pursuant to section 61 of the Occupational Health and Safety Act R.S.O. 1990, c. 0-1 as amended (the "Act"). Board File Nos. 0364-97-HS and 0365-97-HS are appeals of decisions made by Ministry of Labour Inspector Michael Budlovsky recorded in Field Visit Nos. 681398 and 681399 respectively finding that work refusals arising from staffing decisions made by the Ministry of the Solicitor General and Correctional Services responsible for the management of the Whitby Jail ("the Employer") are not covered by section 43 of the Act. The appeal in Board File No. 3235-97-HS relates to the failure or refusal of Ministry of Labour Inspector Rick Richmond to issue a formal decision in relation to an investigation into whether the Employer violated section 25(2)(h) of the the Act by the manner in which it assigned staff at the Whitby Jail recorded in a report set out in Field Visit No. 760829.
At the opening of the hearing, there was no objection to the Board's jurisdiction to hear and deal with the preliminary objections raised by the responding parties relating to a claim that the appeals were premature and that they did not establish a prima facie and to hear and deal with the merits of the appeals if the preliminary objections were dismissed.
The Employer submitted that the appeals should be dismissed as they were premature since no decisions were made and in the alternative, that the appeals did not disclose a prima facie case against the Employer. The Ministry of Labour and the Inspectors supported the submissions made by the Employer. During the course of the submissions of the responding parties, it was conceded by counsel for the Employer that orders within the meaning of section 61 of the Act had been made in Board Files No. 0364-97-HS and 0365-97-HS. With respect to Board File No. 3235-97-HS, the Ministry of the Labour advised the Board and the other parties that although the Inspector's narrative report had indicated that the investigation was ongoing and that the Inspector was awaiting further information from the parties before making a determination, a representative of the appellant advised Inspector Richmond in November or December 1997 that the appellants would not be providing any further information to him because it was up to the Employer to prove that the workplace was safe. Despite having been advised at the end of 1997 that no further information would be forthcoming from the appellants (who initiated the complaint giving rise to the investigation), no formal decision had been made by Inspector Richmond as of the date of the hearing in this matter.
With respect to the motion made in respect of Board File Nos. 0364-97-HS and 0365-97-HS, counsel for the Employer acknowledged in course of her submissions that her argument that there was no prima facie case depended upon the Board accepting the Employer's version and explanation of the facts asserted by the appellants. Since a determination of whether an appellant makes out a prima facie case is premised upon accepting everything the appellant alleges for purposes of assessing whether there is prima facie merit to stage, it is not appropriate for the Board to consider the factual assertions of the Employer in making that kind of determination.
Following the submissions of counsel for the responding parties, the Board advised counsel for the appellants that it did not have to hear from him and delivered an oral ruling dismissing the preliminary motions of the responding parties:
Counsel for the Employer supported by counsel for the Ministry of Labour and the Inspectors submit that these appeals should be dismissed on the grounds of prematurity and no prima facie case. It is clear that orders were made in Board File Nos. 0364-97-HS and 0365-97-HS. In those circumstances, there can be no issue of prematurity. Furthermore, in order to make a determination with respect to the scope of section 43 of the Act, upon which the appeals in Board File Nos. 0364-97-HS and 0365-97-HS are based, there must be a factual context established before the Board can determine whether section 43 does apply to the circumstances raised. I am not prepared to say at this preliminary stage that the appellants' interpretation of section 43 of the Occupational Health and Safety Act is unreasonable or so devoid of merit as to warrant dismissal of their appeals without a hearing. Therefore, the motion with respect to Board File Nos. 0364-97-HS and 0365-97-HS is dismissed.
With respect to Board File No. 3235-97-HS, it is conceded that the Inspector was advised by the appellants a few days after his meeting which resulted in the issuance of the narrative in Field Visit No. 760829 that the appellants would not be providing any further information with respect to their allegations that the Employer's staff assignments violated section 25(2)h) of the Occupational Health and Safety Act. Counsel for the Ministry of Labour and the Inspectors and counsel for the Employer submit that the investigation continues to be ongoing and no decision has been made. That investigation has been pending, according to the responding parties, since about December 1997.
I disagree. In my opinion, in these circumstances, where no further information was going to he provided by the parties asserting that the Employer was in violation of the Act, the Inspector could not make any decision other than finding no violation since no other facts would come before the Inspector that were not in front of the Inspector at the time he asked for more information before making his decision. Since the Inspector declined to make an order at that initial point, there can be no proper basis for the Inspector making an order against the Employer when no additional facts are presented to him. In these circumstances, I am satisfied that the Inspector refused to make an order and therefore there is in existence an order from which an appeal can be made by reason of section 61(5) of the Occupational Health and Safety Act.
Furthermore, I am satisfied that there is an arguable case for asserting that staffing at the Whitby Jail may require an assessment as to whether the employer has taken "... every precaution reasonable in the circumstances for the protection of a worker" as is required by section 25(2)(h) of the Occupational Health and Safety Act.
For these reasons, the preliminary motions to dismiss these three appeals on the grounds of both prematurity and no prima facie case are hereby dismissed.
Following delivery of the Board's ruling with respect to the preliminary objections raised by the responding parties, the Board received opening statements from all parties for the balance of the hearing on January 21, 1999 and continuing on January 22, 1999. The parties agreed, during the course of opening statements, that the Board should take a view of the Whitby Jail. The Board agreed to do so and a view was conducted of the Whitby Jail on the afternoon of January 22, 1999.
Prior to adjourning the hearing and reconvening to take the view, the Board and the parties engaged in discussions with respect to continuation dates and the conduct of the hearing. The parties agreed that each party would file with the Board and deliver to the other parties statements of material facts upon which each party intended to rely, including any documents that the party intended to submit, at the hearing of this matter in accordance with the timetable set out below. The parties further agreed and the Board directed that the parties would not be permitted to adduce evidence about any fact not included in their statements of material facts except with leave of the Board. The Board indicated to the parties that leave to introduce evidence about facts not set out in their statements of material facts would not likely be granted unless there were compelling reasons to do so.
The timetable for filing and delivering the statements of material facts is:
appellant's statement of material facts (and documents) - on or before the close of business on Tuesday, April 6, 1999;
responding parties' statements of material facts (and documents) in response - on or before the close of business on Friday, April 30, 1999;
appellant's statement of material facts (and documents) in reply - on or before the close of business on Friday, May 25, 1999.
The Board advised the parties that it would consider any issues the parties wished to raise with respect to production of documents provided such issues were raised promptly. If any party seeks production of documents from another party and the other party resists production, the party seeking production must make a formal request to the Board for production of the documents sought on or before March 1, 1999. The party from whom production is sought must file its reply to the request for production on or before March 8, 1999. The Board will determine the production issues based upon the wrttten representations of the parties.
These matters are referred to the Registrar to be listed for continuation of hearing before me on July 20, 21 and 22, and September 8 and 9, 1999. I am seized with these matters.