[1999] OLRB REP. MARCH/APRIL 219
3259-98-HS K. Winter Sanitation Inc., Applicant v. Ministry of Labour and Inspector John Ferreira, Responding Parties
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; April 28, 1999
1By decision dated February 11, 1999 the Board directed the applicant to file submissions as to why the applicant has standing to bring this appeal. It appeared to the Board that the applicant was not one of the entities who may bring an appeal under section 61 of the Occupational Health and Safely Act, R.S.O. 1990, c. 0-1, as amended, (the "Act"). Both the applicant and counsel for the responding parties filed timely submissions and the Board has now had an opportunity to consider the matter.
2The Board noted in its February 11, 1999 decision that the order that is the subject of this appeal was issued against Richard & B.A. Ryan Ltd. ("Ryan"), the constructor responsible for ensuring compliance with section 29 of the Construction Projects Regulation (0. Reg. 213/91) under the Act. Section 29(1) of the Construction Projects Regulation provides: "The constructor shall provide or arrange for the use of toilet and clean up facilities before work has started on a project." That regulation goes on to prescribe the minimum standards for those toilet and clean up facilities.
3It was clear from the material filed that the applicant supplied toilet and clean up facilities to Ryan under a rental arrangement. The inspector, in making the order, determined that the toilet and clean up facilities did not meet the requirements prescribed by sections 29(5), (6) and (7) of the Construction Projects Regulation under the Act. The applicant contends that its toilet and clean up facilities do comply with the requirements established by sections 29(5), (6) and (7) of the Construction Projects Regulation. Ryan did not appeal the inspector's order.
4Section 61(1) of the Act provides:
"Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order."
The Board noted in its earlier decision in this matter that the applicant did not appear to be an "employer, constructor, licensee, owner, worker or trade union" and therefore did not appear to have a right to appeal the order issued against Ryan.
5The applicant filed submissions in support of its position that it has standing to appeal the order. The president of the applicant contended that he is an owner who feels himself aggrieved by the decision of the inspector and points out that he (and the applicant) have been prejudicially affected by the order due to the costs associated with picking up the facilities that had been provided to Ryan and by the loss of the rental revenue because Ryan would no longer use the applicant's equipment by reason of the inspector's order.
6The president of the applicant is not the person who made the appeal. Whether the president of the applicant is an owner or something else is of no consequence as it is the applicant and not its president who is bringing this appeal. The applicant (as distinct from its president) did not assert that it is an owner within the meaning of the Act.
7The applicant pointed out that the inspector has the power under section 57(1) of the Act to make an order against any person whom the inspector believes is in contravention of the Act. Section 57(1) of the Act provides:
"Where an inspector finds that a provision of this Act or the regulations is being contravened, the inspector may order, orally or in writing, the owner, constructor, licensee, employer, or person whom he or she believes to be in charge of a workplace or the person whom the inspector believes to be the contravener to comply with the provision and may require the order to be carried out forthwith or within such period of time as the inspector specifies." [emphasis added]
The applicant contends that if the inspector believed that the equipment it rented to Ryan did not meet the requirements of the Construction Projects Regulation he should have made the order against it, as the supplier of the toilet and clean up facilities to Ryan. By making the order against Ryan and the not the applicant, the suitability of the toilet and clean up facilities supplied by the applicant would not be determined, the applicant argued, because it would not be in Ryan's interest to lodge an appeal. Ryan would simply use another supplier.
8Counsel for the responding parties submitted that the applicant does not have standing to bring this appeal. Counsel referred to Lift Dynamics Inc., Office of Adjudication decision dated July 12, 1993 (Stelmaszynski) and Vallance & Associates, Office of Adjudication decision dated June 24, 1993 (Muir).
9In Lift Dynamics Inc., the applicant was the manufacturer of the equipment that was the subject of the order. The adjudicator held that section 61(1) of the Act precluded an appeal by the manufacturer of the equipment that was the subject of the order when the order had been issued against a specific employer using a particular piece of the manufacturer's equipment. I note that the adjudicator in that decision dismissed the appeal because it was also untimely, having been filed by the manufacturer some three and a half months after the order had been issued. There was no indication in that decision as to whether the manufacturer had also been the entity responsible for supplying the equipment to the employer against whom the order was issued, although the decision does note that in addition to the manufacturer, the distributor of the equipment was also in attendance at the hearing. Thus, it appears implicitly that the manufacturer had not been the direct supplier of the equipment that had been the subject of the order. Nor does the decision suggest that the manufacturer had argued that it was an employer for purposes of appealing the order under section 61 of the Act.
10In Vallance & Associates, an appeal had been initially filed by a building owner. The building owner subsequently withdrew the appeal and the consultant who had provided consultancy services to the owner sought to continue with the appeal. The order related to an inspection of anchor bolts used for window cleaning operations and the report of that inspection. The inspector noted in the order under appeal that the report relied on by the owner was unsatisfactory. The consultant took issue with the inspector's conclusion. The Ministry of Labour, in arguing that the consultant had no standing to appeal, submitted that the consultant was, at best, an independent contractor retained by the building owner and although he had an economic interest in the outcome of the appeal, mere economic interest was not sufficient for standing when the list of entities who may appeal an inspector's order under section 61 is quite explicit. The adjudicator noted in that case that the order under appeal was not made against the consultant. The adjudicator ruled that the consultant did not come within the class of entities who can bring an appeal under section 61 and therefore dismissed the appeal. There was no indication in that decision as to whether the consultant had argued he was an employer under the Act.
11Section 61 of the Act lists the parties who can appeal an inspector's order. A listed party, in order to have standing to appeal an inspector's order, must "consider.. .itself aggrieved by any order made by an inspector under this Act or the regulations...." In my view, if a party wishing to appeal from an order of an inspector is one of the entities listed in section 6 1(1), then it has the right to appeal an order, provided it considers itself aggrieved by that order. Similarly, if the party seeking to appeal an inspector's order is not one of the entities listed in that section, there is no right of appeal under the Act for that party, even if it considers itself aggrieved by that order.
12There appears to be an anomaly in the Act with respect to the right to appeal an inspector's order by persons who supply machines or equipment for use in a workplace under section 31(1) of the Act. Section 31(1) of the Act states:
"Every person who supplies any machine, device, tool or equipment under any rental, leasing or similar arrangement for use in or about a workplace shall ensure,
(a) that the machine, device, tool or equipment is in good condition;
(b) that the machine, device, tool or equipment complies with this Act and the regulations; and
(c) if it is the person's responsibility under the rental, leasing or similar arrangement to do so, that the machine, device, tool or equipment is maintained in good condition."
If the responding parties are correct, a person who supplied equipment for use in the workplace in contravention of section 31(1) and as a result, was subject to an order from an inspector pursuant to section 57(1) of the Act, would not have the right to appeal that order under section 61(1) as a person who supplies equipment is not an entity listed in section 6 1(1). That apparent anomaly is the basis for the applicant's claim that it has the right to appeal from the inspector's order in this case despite there not being an order made against the applicant. If the inspector had made an order against the applicant as a result of an alleged contravention of section 31(1) the result would be the same. Unless the applicant is one of the entities listed in section 61(1), it would have no right to appeal such an order.
13The applicant made an additional submission in support of its position relying on the definition of employer contained in the Act. Section 1(1) of the Act defines employer as:
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."
The applicant submitted that it was a subcontractor who supplied services, that is toilet services, and performed clean up work in relation to those toilet services by having its employees do that work on the Ryan project.
14The applicant is clearly not a worker, trade union or licensee. An owner is defined by the Act by reference to having some degree of control over the land or premises being used as a workplace. A constructor is defined as the person who undertakes a project for an owner. Thus, the applicant is also neither an owner nor a constructor within the meaning of the Act. The remaining category of entity with standing to appeal an inspector's order under section 61 of the Act is an employer.
15It is clear therefore that for the applicant to have standing to appeal an inspector's order under section 61 of the Act, it must first establish that it is an employer and then establish that it considers itself aggrieved by the inspector's order. The applicant submitted it was an employer on two principal grounds: i) it was a subcontractor who supplied services to Ryan and ii) it employed workers and had those workers perform work at the Ryan project. In my opinion, it did not supply services to Ryan as a contractor or subcontractor so as to bring it within the definition of employer in section 1(1) of the Act on the first ground relied upon by the applicant. In my view, the "supply of services" in the definition of employer in section 1(1) of the Act refers to the supply of the services of one or more workers, not to the supply of services without workers. The applicant did not employ any workers who were affected by the inspector's order. The applicant did not have any of the obligations of an employer in respect of the Ryan project. The applicant merely rented toilet and clean up facilities to Ryan. It did not supply the services of one or more workers to Ryan. It only employed workers to perform services in relation to the rental of the toilet and clean up facilities.
16Even though the applicant was not a contractor or subcontractor who supplied services so as to bring it within that element of the definition of employer under the Act, the definition of employer under the Act is quite broad. To be an employer, one must merely be "a person who employs one or more workers". It is beyond dispute that the applicant, as a corporation, is a person. It is also clear from the material filed that it employed workers as a corporation must do to perform the work it undertakes. Thus, the applicant, quite literally, comes within the definition of employer found in section 1(1) of the Act. Whether it is also an employer under section 61 with the right to appeal an inspector's order made against another person requires, in my opinion, further consideration of the scheme of the Act and an analysis of section 61.
17Part III of the Act imposes duties on employers and other persons. The applicant, as an employer, is subject to the duties and obligations imposed on employers. Section 23 imposes duties on constructors, section 24 imposes duties on licensees, sections 25 and 26 impose duties on employers, sections 27 and 28 impose duties on workers (and supervisors, who might well come within the definition of worker, at least for purposes of bringing an appeal under section 61) and sections 29 and 30 impose duties on owners. Each of those persons have an explicit right to appeal an inspector's order under section 61 of the Act.
18The Act goes on in sections 31 and 32 to impose duties on equipment suppliers, architects and engineers, and directors and officers of a corporation. While an inspector clearly has the authority to issue orders requiring compliance with the Act against any person who is contravening the Act (equipment suppliers, architects, engineers, officers and directors are therefore subject to having an inspector make an order against them), it is not at all clear that those persons would have the right to appeal an inspector's order in those circumstances. If the persons against whom an order is issued cannot appeal the order under the Act they would not be without remedy. The absence of a right of appeal under the Act does not in any way diminish their right to seek judicial review of an inspector's decision. If in addition to being a supplier, architect, engineer, officer or director they also come within the Act's definition of "employer", they may have the right to appeal. In my view, a supplier and an employer are not mutually exclusive entities under the Act. A supplier may also be an employer.
19Section 61 might well have said, in addition to listing the entities set out therein, a "person" who considered himself or herself aggrieved by an order may appeal. To that end, section 61 may be usefully compared with section 57(11) of the Act which permits an inspector to make an order without a hearing. Section 57(11) states:
"An inspector is not required to hold or afford to an owner, constructor, licensee, employer or any other person an opportunity for a hearing before making an order."
Section 57(11) makes specific reference to owner, constructor, licensee and employer and then goes on to state that the inspector need not afford "any other person" an opportunity for a hearing before making an order. In that way, the statute empowers an inspector to issue an order under section 57 against persons not listed in section 61 without requiring the inspector to hold a hearing.
20The right to appeal an inspector's order is statutory. The Act does not confer the Board with the discretion to allow any person aggrieved by an inspector's order to appeal that order. (Section 6 1(2)5 of the Act permits the Board to add persons as parties to an appeal, but I do not accept that the Board can use its discretion to make a person a party to an appeal to confer the right to appeal on that person. The Board may only add a person as a party to an existing appeal properly before the Board.) The Act limits the availability of the appeal process to those entities specifically listed in section 61. A person who supplies equipment (who, as in this case, merely rented the equipment) is not a person who has the right to appeal an inspector's order made in relation to that equipment unless that person is also an entity listed in section 61 of the Act. (I also note that each of those entities are defined by section 1(1) of the Act. Thus, resort must be made to the definitions in section 1(1) of the Act when interpreting section 61.)
21In my opinion, the statutory framework with respect to enforcement of the Act is relatively clear. The Act imposes obligations. Inspectors are charged with ensuring those obligations are met and are given the power under section 57(1) of the Act to issue orders against "... any person whom the inspector believes to be the contravener" to obtain compliance with the Act. The exercise of an inspector's power is subject to review by the Board through the appeal process.
22The applicant has the status of an employer under the Act since it employs one or more workers. It was not, however, an employer on the Ryan construction project against whom the order was issued. Does that affect its status to appeal the inspector's order made against Ryan?
23In my opinion, a careful analysis of section 6 1(1) of the Act leads to the conclusion it does not. Section 61(1) confers the right to appeal on "any employer", not just on the employer named in the order. That is not to say an employer that does not have a direct connection to the subject matter of the order can still appeal the order. Rather, in my view, the legislature sought to limit access to the appeal process by its use of the words "which considers himself, herself or itself aggrieved by any order made by an inspector" in section 61(1) of the Act. The principal focus of section 61 should not be on the identity of the entity seeking to appeal, but rather on whether that entity has been adversely affected by an inspector's order. As the applicant has the status of an employer under the Act, it quite literally comes within the words of section 6 1(1) which confer the right to appeal on "any employer". The remaining issue therefore is whether the applicant "considers itself aggrieved" by the inspector's order.
24The applicant claims it was affected by the inspector's order. Is it entitled to assert that it considers itself aggrieved by the inspector's order? The term "consider itself aggrieved" does place some limit on who has standing to appeal an inspector's order. In Triple M Services, Director of Appeals decision dated January 16, 1990 (Blair), the Director of Appeals held a person did not have status to bring an appeal as a "concerned citizen", although a union which represented workers at a facility where demolition work was taking place but did not represent any of the workers employed by the demolition contractor had standing to appeal an inspector's decision in respect of that demolition contractor. The decision described the argument of the Ministry of Labour in that case at page 5 of the decision:
"The Ministry also takes the position that the Union has no status to bring this appeal. This position stems from the fact that the decisions and orders were made with respect to a project which the employees represented by the Union do not perform work on. The Ministry argues that the class of person permitted to make appeals by virtue of subsection 32(1) [now 61(1)1 of the Act must be limited to the actual "workplace parties". It is pointed out that some limitation must be placed on the class of parties who can appeal, otherwise any Constructor, Owner, Worker, or Trade Union could appeal any decision of an inspector, even if that decision involved a situation totally removed from that party. Put another way, any one of these enumerated parties could bring an appeal as a "concerned citizen" anytime it was felt that the Act was not being appropriately applied even if the parties appealing had no involvement in the workplace in question. The Ministry also suggests that a trade union that does not represent employees on a project cannot be 'aggrieved' within the meaning of subsection 32(1) [now 61(1)] by decisions relating to that project."
25In rejecting that argument the Director of Appeals stated:
'The problem with the Ministry's position is that there are cases where parties not directly involved in a particular project or enterprise are so situated that they may be very directly affected by its health and safety practices or by what transpires in Occupational Health and Safety Act proceedings related to it."
The Director of Appeals found that the union appellant in that case had standing as it properly considered itself aggrieved by the inspector's decision.
26In Workers' Compensation Board, Director of Appeals decision dated April 15, 1986 (Currie), the Director of Appeals dismissed an appeal on the grounds that the employee affected was no longer working in the area where the conditions giving rise to the appeal were (having moved from that area prior to the inspector's decision) and therefore was not aggrieved. In that decision, the Director of Appeals wrote, at page 6:
'The statutory requirement that an appellant must be 'aggrieved' is a reflection of these common law principles.
To be aggrieved must be something more than intellectual dissatisfaction. There must be a direct and substantive effect on the complainant to the extent, in this case of at least continuing exposure to the environment complained of, or, a complaint concerning the employer's attempted remedy of the situation being, for example, moving the worker to a different environment."
The Director of Appeals in that case did not, with respect, appear to appreciate that the Act allowed an appeal by a person who considered himself aggrieved. She did not distinguish between the language of what is now 61(1) and the term "person aggrieved". In my opinion the term "person aggrieved" is narrower in scope than the term "person who considers himself aggrieved". The approach taken by the Director of Appeals in the later Triple M Services decision more closely reflects the language of the Act and is, in my view, the better approach to determining whether a party has standing to appeal.
27In Friends of Toronto Parkland (1991), 1991 CanLII 7145 (ON CTGD), 86 D.L.R. (4th) 669 (Ont. Div. Ct.), the court was required to determine whether the party seeking to appeal an order made by an inspector or official under the Building Code Act, R.S.O. 1980, c.5l had standing to appeal. The issue was succinctly set out by the court at page 671 of the decision:
"In this case, the court is asked to decide: 'In law, who is any person who considers himself aggrieved' as that term is used in 5.15(1) of the Building Code Act?
Section 15(1) of the Act states:
Any person who considers himself aggrieved by an order given or decision made by an inspector or chief official under this Act or the regulations may, within twenty days after the order or decision is made, apply to the judge of the county or district court for a hearing and appeal."
Section 15(1) of the Building Code Act was, in relation to standing to appeal, practically the same as section 61(1) of the Act.
28The court began its analysis of who has standing to appeal under section 15(1) of the Building Code Act at page 677 when it stated:
"The critical words for consideration in this section, in our view, are: 'Any person who considers himself aggrieved'."
The court referred to the earlier decision of Zalev D.C.J. in Giglio Enterprises Ltd. v. Link, unreported, QL cite, [1989] O.J. 1652, decision dated September 8, 1989. In that case Zalev, D.C.J. wrote at page 18 of the decision:
"It must be noted that 5.15(1) uses the words 'any person who considers himself aggrieved'. This must include a class of persons wider than 'any person aggrieved'.... In any event, it cannot include every person who, for whatever reason, has a personal axe to grind, whether real or fanciful, against the municipal authorities, building department, landowner, and those involved in the actual construction. At the very least there must be reasonable grounds for believing oneself aggrieved."
29The court in Friends of Toronto Parkland found that a party can consider itself aggrieved (under the Building Code Act) if it considers itself wronged by a decision made under the Building Code Act. The court wrote at page 678:
"The words of s. 15 of the Building Code Act represent an express provision intended by the legislature to be dispositive of the question of standing under that statute. While the word 'aggrieved' is not to be understood in some traditional sense relating to a person's legal interest, nevertheless, the legislature clearly intended some threshold test be applied and it would be inappropriate to leave the whole matter either to the subjective whim of the appellant or solely to the discretion of the court. The word 'aggrieved' is to be considered in its ordinary dictionary meaning and not as a legal term of art. It is used today only in the passive voice referring generally to distraught or agitated states of mind. Persons ‘who consider themselves aggrieved' are persons who consider themselves wronged by a decision of the chief official within the context of the Building Code Act. In our view, persons may be aggrieved within the meaning of that term in s. 15 though they have suffered no legal harm. It is the responsibility of the courts, when requested to do so, to determine if a particular administrative action is legitimately within the scope of the statutory power and an appeal is not to be barred simply because the appellant does not have a personal proprietary or pecuniary interest."
[emphasis added]
30A similar analysis was used in Loblaws Inc., (1992), 1992 CanLII 8625 (ON CTGD), 95 D.L.R. (4th) 695 (Ont. Ct. Gen. Div.) in which standing to appeal a decision to grant a building permit under section 15 of the Building Code Act, R.S.O. 1990, c.B.13 was in issue. The appellant challenged the grant of a building permit, not because the appellant was an adjacent land owner, but rather because it was a potential competitor of the person who received the building permit. Although the wording of section 15 of the Building Code Act had changed from "any person who considers himself aggrieved by an order" in the R.S.O. 1980 version of the Building Code Act to "any person who wishes to appeal an order" in the R.S.O. 1990 version of that statute, Feldman, J. (as she then was) concluded that standing to appeal should be interpreted in the same way. The decision in Loblaws Inc. at page 697 states:
"If the effect of the new wording is that literally 'any person' may appeal a decision to issue a building permit, then there is no dispute that the applicants have standing to appeal.
The respondents argue that the change of wording effects no substantive change, and therefore must be interpreted to mean 'any person who considers himself aggrieved', as that phraseology has been interpreted by the courts.
In my opinion, this is the better view, and is supported by the wording change. The phrase 'who considers himself aggrieved' is not only old-fashioned in its form, but also, for example, in the fact that it is not gender neutral nor easily made so. Its purpose is to put a subjective element into the determination of who may appeal. The revised version does not give the right of appeal to 'any person' without qualification, but to 'any person who wishes to appeal'. Arguably, this is merely a modern way to express the same subjective qualification of the right to appeal."
[emphasis added]
It is the "subjective element" in the determination of who has standing to appeal an order under section 61 of the Act that is imparted by the words "considers ... itself aggrieved". That subjective element, of necessity, requires the Board to take a broad, liberal view of whether an entity listed in section 61 has standing to appeal an order under section 61.
31Feldman J. (as she then was) adopted the approach of the Divisional Court in Friends of Toronto Parkland when she stated at page 700:
"In that case, the court allows for the broadest of nexus between the interests of the appellant and the decision to issue the building permit. In that case, the appellant public interest group had no proprietary or pecuniary interest in the decision, but rather felt that the development in question was not in the public interest for various reasons. The court would not have denied them standing on that basis."
She then concluded her analysis on page 700:
"In my view, the reference by the court to a pecuniary interest (p.678) suggests that if a person did have such an interest or reasonably believed that they did, then that interest would be sufficient to give standing under s. 15."
[emphasis added]
32In my view, the applicant in this case, as the person who supplied equipment to Ryan, while not being subject to the inspector's order, has a reasonable basis for asserting that the inspector's order has adversely affected its interests. It supplied the equipment that was found by the inspector not to meet the requirements of the Construction Projects Regulation under the Act. I am satisfied its interest, although perhaps not a "legal" interest, is sufficient to establish that it has a reasonable basis for asserting that the inspector's order adversely affected it, or, in the words of the Divisional Court in Friends of Toronto Parkland it is reasonable for the applicant to consider itself wronged by the inspector's order. Thus, I am satisfied that the applicant can properly and reasonably consider itself aggrieved by the inspector's order under appeal in this proceeding.
33I recognize that my conclusion on this preliminary issue, although more consistent with the approach taken by the Director of Appeals in Triple M Services, appears to depart from the determinations made by the adjudicators in Lift Dynamics Inc. and Vallance & Associates. In both those decisions, there was no analysis undertaken of section 61, nor did it appear as if the appellants in those cases argued they had standing to appeal as entities listed in section 61. Finally, in Lift Dynamics Inc., the status to appeal issue was not necessary to the result as the appeal was clearly untimely. For these reasons, I was not persuaded by those two decisions and therefore declined to follow their approach to the issue of the applicant's right to appeal an inspector's order under section 61.
34The responding parties' preliminary motion to dismiss this appeal is dismissed as I am satisfied that the applicant is an employer which considers itself aggrieved by the inspector's order under appeal. The applicant has standing to appeal the inspector's order against Ryan in Field Visit No. 832750.
35This matter is referred to the Registrar to be listed for hearing.
36This panel of the Board is not seized with this matter.