[1999] OLRB REP. JULY/AUGUST 652
0747-99-HS; 0748-99-HS Ministry of the Solicitor General and Correctional Services (Whitby Jail), Applicant v. Rob Gordon, Sam Patrick and Grant Lailey; David Fung and Ministry of Labour, Responding Parties
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; July 14, 1999
This is an appeal under section 61 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, as amended, (the "Act") of a portion of the order made by Inspector David Fung under the Act on May 8, 1999 in Field Visit No. 814023 in which the applicant seeks to suspend the operation of the part of the order under appeal pending the Board's determination of the appeal. The appeal was filed on June 7, 1999. In its letter of appeal, the applicant requested the suspension and filed seven copies of its detailed submissions in support of both its appeal and request to suspend the operation of the order. The appeal was assigned Board File No. 0747-99-HS. The request to suspend the operation of the order was assigned Board File No. 0748-99-HS.
The Board, following its usual practice, issued a decision dated June 11, 1999 finding that the appeal was timely and directing the filing of submissions. Unfortunately, copies of the applicant's original submissions were not forwarded by either the applicant or the Board to the other parties. By letter dated June 18, 1999 the applicant, in response to the Board's decision of June 11, 1999, stated that it was relying on the submissions made with its June 7, 1999 letter of appeal and request for a suspension and provided some additional information that had not been included in its earlier submission.
The Acting Superintendent of the Whitby Jail contacted Inspector Fung directly by memorandum dated June 21, 1999 to request an extension to the time the Inspector had fixed for compliance with his May 8th order. An additional thirty days for compliance was sought so that the Board might, within that time, rule on the applicant's request for the suspension of the operation of the portion of the order under appeal. Inspector Fung, by order dated June 23, 1999, in Field Visit No. 814065 declined to make any change and advised the parties that they were to contact the "Appeal Board regarding the order compliance date extension". Subsequently, the Acting Deputy Superintendent of the Whitby Jail wrote to the Board's solicitor requesting "an extension until the appeal itself can be formally reviewed." The Board, by decision dated June 24, 1999, declined the applicant's request for an extension because the deadline for the parties to make submissions with respect to the applicant's request for a suspension of the operation of Inspector Fung's May 8, 1999 order had not elapsed.
The employees affected by the appeal filed submissions with the Board on June 24, 1999 pursuant to the Board's decision of June 11, 1999. It was not clear from their submissions whether the employees provided a copy of their submissions to the applicant. It appears that the material filed with the Board by both the applicant and the employees had not been provided to counsel for the Ministry of Labour.
Counsel for the Ministry of Labour, by letter dated July 5, 1999, requested an extension of time in order to allow him time to file submissions in respect of the request of the applicant to suspend the operation of Inspector Fung's May 8, 1999 order. The Board, by decision dated July 5, 1999, extended the time for filing submissions to July 9, 1999, but in that decision mistakenly referred to the applicant as having made the request for an extension when in fact it was the Ministry of Labour which had sought the extension of time for filing submissions. Counsel for the Ministry of Labour, by letter to the Registrar dated July 7, 1999 advised that the Ministry of Labour was taking no position with respect to the request by the applicant for a suspension of the order pending the Board's disposition of the appeal.
Request for Suspension Board File No. 0748-99-HS
The portion of the order the applicant seeks to suspend directed the applicant to "provide information, instructions and supervision on mechanical restraints to escorting correctional officers to protect the health and safety of the worker." The order goes on to direct the applicant to comply with the order by June 24, 1999.
The applicant contends that the Inspector's order would prejudice the employer by requiring it to create a training program before the Board had an opportunity to review the merits of the appeal. It also points out that the Ministry of Correctional Services Joint Occupational Health and Safety Committee will be implementing a training program pursuant to an earlier decision issued by an adjudicator under the Act. The applicant also contends that there have not been any incidents in which an employee's health or safety has been threatened due to improper use of the mechanical restraints its employees apply when escorting prisoners.
The employees oppose the suspension of the order and submit that the absence of proper training for staff in the use of mechanical restraints is an ongoing safety hazard. In addition, the employees filed statements in the form of petitions in which they state that they feel a suspension of the Inspector's order will most certainly place all workers in danger. The employees' submissions take issue with a number of the factual assertions made by the applicant. In essence, the employees contend that the applicant has provided little, if any, training to employees with respect to mechanical restraints and that the failure to provide training does create an immediate danger to employees.
The Board in R.J. Dungey & Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at paragraph 17 indicated that a number of different interests must be balanced in considering whether to suspend the operation of an order pending the determination of the appeal from that order. Furthermore, at paragraph 19, the Board wrote:
"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 network 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."
The applicant submits that Inspector Fung relied on the applicant's Policies and Procedures Manual to justify the order and was mistaken in doing so. The order was issued by Inspector Fung pursuant to section 25(2)(a) of the Act. It is not obvious that the Inspector's order was wrong or made without jurisdiction; nevertheless the applicant's submissions do contain persuasive grounds for challenging the order.
The factors the Board considers in determining whether to suspend the operation of an inspector's order are:
(a) whether the suspension of the order would endanger worker safety;
(b) whether the employer would be severely prejudiced by not suspending the operation of the order; and
(c) whether there is a strong prima facie case for a successful appeal of the order.
(See R.J. Dungey & Sons Ltd., supra, at paragraph 17, and the decisions cited there). The application of those factors to the circumstances of this case suggest to me that a suspension pending the Board's determination of the appeal should be granted.
I do not accept the employees' submission that suspending the order would endanger the safety of workers. The alleged absence of training has existed for several years, according to the employees, but there do not appear to have been any incidents where the alleged lack of training with respect to the use of mechanical restraints has jeopardized an employee's health or safety. Furthermore, I note that Inspector Fung found that the employees did not have a right to refuse to escort prisoners as that is a part of their normal duties. Since escorting prisoners with the use of mechanical restraints are a part of the employees' normal duties, the absence of any specific incidents of the safety of employees being compromised by the alleged absence of training in the use of mechanical restraints persuades me that suspending the operation of the order pending the Board's determination of the appeal would not endanger worker safety.
The prejudice to the employer by not suspending the operation of the order would be, in my opinion, significant. The creation and implementation of a new training program in the workplace that might be found ultimately unnecessary would cause the unwarranted expenditure of financial and other resources. Furthermore, it appears that developing a training program and then implementing that training for all employees would likely occupy the applicant's staff for several months. In my view, the implementation of an order giving rise to a significant expenditure of resources should be suspended as long as there is merit to the appeal in a situation where the safety of workers would not be jeopardized by the suspension of the order pending the determination of the appeal.
I would observe that the appeal raises issues of fact with respect to the scope and content of the applicant's current training program in relation to mechanical restraints. If the requisite training was being provided to its employees in the way the applicant asserts in its submissions, then the applicant is likely to succeed in this appeal. If, on the other hand, the training was either inadequate or nonexistent as alleged by the employees, then this appeal would likely be dismissed.
The applicant asserts that its training programs in respect of mechanical restraints "provided at the Ministry's Staff Development Centre is thorough, and sufficient to protect the health and safety of its [employees]." The applicant also filed copies of its written training materials. Under these circumstances, where there are conflicting facts relevant to the appeal and where the safety of employees would not be jeopardized by suspending the order, I am prepared to assess whether the applicant has a strong prima facie case based on the factual assertions contained in its application. Since the applicant does assert that its training program does meet its obligations under section 25(2)(a) of the Act and that its employees have received the requisite training with respect to mechanical restraints through the applicant's existing training program, I am satisfied, for purposes of determining whether to suspend the operation of the order issued by Inspector Fung on May 8, 1999, that the applicant does have a strong prima facie case for a successful appeal.
The Board, pursuant to section 6 1(7) of the Act, hereby suspends the operation of the portion of the order of Inspector David Fung dated May 8, 1999 in Field Visit No. 814023 which directed the applicant to "provide information, instructions and supervision on mechanical restraints to escorting correctional officers to protect the health and safety of the worker" pending the disposition of the appeal. Thus, the request in Board File No. 0748-99-HS to suspend the operation of the order under appeal is granted.
The appeal in Board File No. 0747-99-HS is remitted to the Manager of Field Services to have a Labour Relations Officer assigned to attempt to mediate a resolution of this matter.
This panel of the Board is not seized with this matter.