[1999] OLRB REP. JULY/AUGUST 601
0473-99-HS; 0718-99-HS; 0716-99-HS; 0717-99- Falconbridge Limited Sudbury Operations Craig Mine, Applicant v. Sudbury Mine Mill and Smelter Workers Union, Local 598/CAW and Ministry of Labour, Responding Parties
BEFORE: John M. Lewis, Vice-Chair.
DECISION OF THE BOARD; July 23, 1999
This is an application filed with the Board pursuant to section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, as amended (the "Act") for an order suspending two related orders made by an inspector pending the Board's determination of their appeal. The applicant is appealing Orders No. 1, 2, 3 and 4 from Field Visit No. 822781, dated May 5, 1999. This appeal was assigned Board File No. 0473-99-HS. The request to suspend the operation of part of this order was assigned Board File No. 0718-99-HS. The applicant is also seeking to appeal Orders No. 1, 2, 3 and 4 of Field Visit No. 885557, dated May 31, 1999. This appeal was assigned Board File No. 0716-99-HS. The request to suspend the operation of part of this order was assigned Board File No. 0717-99-HS.
The applicant initially sought the suspension of Orders Nos. 1 and 2 made in Field Visit No. 822781 and two related orders made in Field Visit No. 885557. After a series of letters were exchanged between the parties, the applicant now takes the position that it is only seeking the suspension of the operation of Order No. 1 from Field Visit No. 822781 and Order No. 1 from Field Visit No. 885557.
Order No. 1 from Field Visit No. 822781 reads as follows:
Pursuant to section 25(2) (c) of the Act, the employer shall ensure that supervisors signing the shaft inspection book are trained in the U0084 module.
- Order No. 1 from Field Visit No. 885557 simply confirms the substance of the order in Field Visit No. 822781 and that there has not been compliance by the applicant. It reads as follows:
Order #001 to ensure that supervisors signing the shaft inspection book are trained in the U0084 Module issued in report #822781 on May 5, 1999 shall be complied with.
By decision dated June 8, 1999, the Board directed that submissions be filed in respect of this application. The Board has received submissions from the applicant and from the Ministry of Labour (the "Ministry"). No other party filed submissions.
The applicant takes the position that the orders under appeal are contrary to the clear wording, spirit and intent of the Act and its regulations. The applicant argues that the Act and regulations do not prescribe that an employer shall provide full common core training and specialized training for all employees who are performing specialized tasks. In addition, the applicant argues that a "competent" supervisor need not be trained in the U0084 Module in order to oversee workers who have been trained in the U0084 Module.
The applicant also notes that in February 1999, the parties entered into Minutes of Settlement, which resolved a number of appeals of orders and established the Mining Tri-Partite Committee (the "MTC") for resolving on-going training and worker/supervisor competency issues. The applicant claims that the MTC is the more appropriate venue for determining the issues, which are the subject matter of the orders under appeal.
The Ministry argues that section 11 of the regulations (R.R.O. 1990 Reg. 854, as amended by 0. Reg. 571/92) requires employers to train workers in the Common Core Program for the type of mining in which they are engaged as well as the specialty modules relevant to their particular tasks. Specialty modules, it is argued, are part of the Common Core and as such are not optional. The Ministry concedes that it may not be necessary in all circumstances for a supervisor to have the same training as those they are supervising but in this instance, it is necessary as the regulations require the supervisor to ascertain that necessary work has been done and the only way a supervisor can make such a determination is by being trained in the specialty module.
With respect to the MTC, the Ministry asserts that the purpose of the MTC is to develop training programs and to discuss ongoing training issues in order to make recommendations for changing legislation, if necessary. The MTC was not designed to adjudicate violations of the Act. Further, the MTC cannot remove the jurisdiction of Ministry inspectors to carry out their mandate and enforce the Act.
The Board will consider a number of factors when determining whether a suspension of an order is warranted in the circumstances. Three primary factors are described as follows:
(1) whether the suspension of the order would endanger worker safety;
(2) the prejudice to the parties if the order is or is not suspended;
(3) whether there is a strong prima facie case for a strong appeal of the order.
The Board has also clearly demonstrated that a certain degree of deference should be afforded to decisions made by inspectors for the purpose of considering the suspension of those orders pending appeal. In the absence of a clear and persuasive reason to interfere with the operation of the order pending the appeal, the order should not be suspended. This degree of deference is enhanced when workplace safety is in issue. I refer to the comments of the Board in R.J. Dungey & Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at paragraph 19:
Furthermore, although the inspector's order is under appeal there is, in my opinion, a rebuttable presumption that an inspector's order is authorized by the OHSA and is correct. An inspector has the statutory duty to administer and enforce the OHSA. An inspector's decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to a hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so. Adjudicator Robert Herman noted in General Motors of Canada Ltd., supra, ...it is appropriate that deference be given to an Inspector's decision on an application for suspension of his or her order. In the absence of some persuasive reason to interfere with that order pending the full application for review, it ought not to be suspended." The burden of persuasiveness becomes greater, in my view, as the risk to the safety of workers increases with the suspension of the order.
The proper inspection of mine shafts clearly impacts upon worker safety. As such, the applicant must meet a high threshold to persuade the Board to suspend the operation of the orders pending the appeal. While the applicant claims that it will be prejudiced if the orders are not suspended, it has pleaded little in the way of facts to substantiate this claim. The Board recognizes that the applicant will be inconvenienced by the imposition of the orders but that is true of most orders by inspection officers. The applicant has failed to demonstrate significant prejudice, which would compel the Board to suspend the operation of the orders in light of the possibility of endangering worker safety.
Without the benefit of evidence on the merits, it is impossible for the Board to determine the merits of the appeals. While the applicant will have a full opportunity to bring evidence and argument to support its position, at this point, I am not satisfied that it is more likely than not to be successful in its appeal on the merits.
Having regard to the material filed by the parties in these appeals, the Board is not satisfied that it should exercise its discretion under section 61(7) of the Act to suspend the operation of Order No. 1 made on May 5, 1999 in Field Visit No. 822781 and of Order No. 1 made on May 31, 1999 in Field Visit No. 885557.