[1999] OLRB REP. MAY/JUNE 373
0221-99-HS; 0222-99-HS; 0223-99-HS; 0226-99-HS; 0224-99-HS; 0227-99-HS; 9225-99-HS; 0228-99-HS BLM Mining Services Inc., Andre Roy, An Lame and Johani Keiski, Applicants v. Ministry of Labour, Responding Party
Health and Safety - Mining services employer appealing certain orders of health and safety inspector and, pending resolution of those appeals, seeking suspension of orders that required certain named employees to get their common core training before working underground and required that another individual be trained in underground construction before being appointed as supervisor on underground construction work - Board finding that suspension of orders could potentially endanger worker safety - Suspension application dismissed
BEFORE: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; June 25, 1999
BLM Mining Services Inc. ("BLM"), Andre Roy, Ari Lame, and Johani Keiski are seeking the suspension of a portion of an order made by an Occupational Health and Safety Inspector in Field Visit No. 823076, dated April 1, 1999. These parties are requesting that Order Nos. 1 and 2 in particular be suspended until the applicants' appeals have been heard and decided. Order No. 1 states: "ensure that J. Keiski, A. Lame get their common core training before working underground", and Order No. 2 states: "Ensure A. Roy is trained in underground construction (U0085) before being appointed as a supervisor on U/G construction work". Board File Nos. 0222-99-HS, 0226-99-HS, 0227-99-HS, and 0228-99-HS are all suspension request applications.
On May 13, 1999 the Ministry of Labour filed prosecutions against BLM and Mr. Roy arising out of the death of Mr. Gordon Grace, a worker who fell to his death in the course of performing underground construction work in the Copper Cliff South Mine on November 25, 1998. It appears that Mr. Roy was the supervisor for the underground construction work which was taking place at the Copper Cliff South Mine on November 25, 1998. Messrs. Lane and Keiski were part of the construction crew which appears to have also included Mr. Grace, the deceased worker. It seems that in the course of investigating that tragic accident, the Occupational Health and Safety Inspector issued the Orders which are being appealed and which the applicants seek to have suspended.
The applicants take the position that Messrs. Roy, Lane and Keiski are experienced construction workers and that all have received the necessary basic common core training to do the work they do. It is alleged that they are all competent and qualified to continue to work in underground construction work without the additional training the Inspector has ordered. It is further alleged that providing further specialty training to these workers for tasks they do not perform would be dangerous as it would lead to a mistaken view that any one of them is competent to perform a task simply as a result of having been certified and trained. In any event, the applicants claim, the issue of training requirements for underground construction workers should be determined by the Mining Tripartite Committee, an employer/government/labour committee which addresses training issues in the mining industry. The applicants contend that there is no reason to believe that the health and safety of workers would be endangered by the three individuals working underground without the ordered training until the resolution of the appeals. BLM and the individuals claim they will be prejudiced if the suspension is not granted because BLM would not be able to utilize the services of these persons, and the individuals would have their livelihoods affected by not being able to work underground.
In its response to the applicants' submissions, the Ministry of Labour takes the position that the Board should refuse to rule on the suspension request, but rather should adjourn all of these matters until after the prosecutions are complete. This is in part because in the Ministry's view the Board would have to address the applicants' interpretation of section 11 of Regulation 854, which is likely also to be a matter directly in issue in the prosecutions. In the alternative, the Ministry requests that the Board deny the suspension request.
The Ministry relies on section 11 of Regulation 854 for the proposition that each full-time worker shall be trained in the modules prescribed for specified mining activity, and that there is a specialized module for underground construction (No. U0085). The individual applicants have completed a number of training modules, but according to the Ministry, have not completed all required training. The remaining training required pursuant to the Inspector's orders would apparently take Mr. Roy less than one day to complete, and Messrs. Keiski and Lame one or two days. The Ministry therefore argues there is very little prejudice to the individual applicants, or to BLM, if the suspension is not granted.
The Mining Tripartite Committee which the applicants referred to is apparently simply a subcommittee of the Mining Legislative Review Committee, and was developed to review and make recommendations concerning training requirements. It is not intended to review the qualifications of particular miners.
The Ministry argues that suspending the orders would directly endanger worker safety, and presents as evidence of the possible consequences the fall and death of Mr. Grace, which it claims is the result of a lack of appropriate training. It urges the Board to recognize that training is a key component of worker safety.
Finally, the Ministry states that the appeals do not prima facie have any chance of success because the applicants' interpretation of section 11 of the Regulation is without merit. Should the applicants' interpretation be accepted it would mean that training requirements would be voluntary rather than mandatory as in fact they are.
The factors to be considered when assessing whether a suspension order is appropriate are described in the decision of Adjudicator Herman in General Motors of Canada Limited (Board File No. 3666-96-HS, June 2, 1997). These three factors have generally been considered by adjudicators when determining whether a suspension of an order is warranted in the circumstances:
(a) whether the suspension of 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.
Having reviewed the submissions of the parties and the particular circumstances of these applications, in my view there is the potential that suspension of the orders would endanger worker safety. In a case of this nature it is impossible to make a definitive finding about whether suspension of the order would or would not endanger worker safety without considering the merits of the case itself. That is not contemplated in deciding on a suspension application. The orders in question arise out of an investigation of an accident in which a worker was killed and where it is believed that there may have been inadequate training and use of safety devices. In that context it is difficult to see how the Board can, on the basis of very little before it, decide that it should suspend the Inspector's order for training for workers.
The degree of prejudice to the employees who are the subjects of the orders appears to be relatively minor. They are not going to be precluded from working underground for however long it takes for these appeals to be heard and decided, or for the time for the prosecutions to be dealt with. They simply cannot work underground until they complete the training as ordered, and according to the Ministry's submissions, that training would take a day or two to complete. The prejudice to BLM is similarly potentially minor as it would mean the individual applicants would not be available to work for at most one or two days.
The applicants do not address the issue of the strength of their case on appeal. The Ministry argues there is no prima facie case. Without the benefit of evidence on the merits it is impossible for the Board to determine the strength of these appeals. In such a circumstance the Board should err in favour of upholding the orders. As Adjudicator Herman stated in General Motors of Canada Ltd., cited above, the inspectors are trained to make decisions, and some deference should be given to their orders. This is certainly the case where there is a concern for worker safety, the prejudice to the applicants if the suspension is not granted is not great, and the relative merits of the appeals are not clear.
Having regard to the foregoing, I am not persuaded that the Inspector's orders of April 1, 1999 should be suspended pending a hearing on the merits. The applications in Board File Nos. 0222-99-HS, 0226-99-HS, 0227-99-HS, and 0228-99-HS are therefore hereby dismissed.
The Board notes that there are a multiplicity of files all arising out of the same Field Visit and appealing the same orders. Both the applicants and the Ministry have asked that these files be consolidated and heard together. It is simply a waste of the Board's resources and those of the various parties to have to create correspondence and to file materials in each of these files. The Board therefore directs that the three individual applications be consolidated into the BLM application and that the style of cause be amended so that the responding parties are: "BLM Mining Services Inc., Andre Roy, Ari Lame, and Johani Keiski". Each of Messrs. Roy, Lame and Keiski have party status in their own right. Board File Nos. 0223-99-HS, 0224-99-HS, and 0225-99-HS are to be closed and any relevant materials presently in those files are to be consolidated into Board File No. 0221-99-HS. In the future the parties are directed to refer to Board File No. 022 l-99-HS in all their correspondence or submissions.
Finally, the Ministry has requested that the appeal be adjourned pending the outcome of the prosecutions. The applicants have five days from the date of this decision to advise the Board of their respective views on the adjournment request. The Board will then consider this matter further. I remain seized of the issue of the adjournment request, but not of the merits of the appeal.