[1999] OLRB REP. NOVEMBER/DECEMBER 1084
1838-99-HS; 2094-99-HS; 2096-99-HS; 2097-99-HS; Ontario Power Generation Inc., Applicant v. Power Workers' Union and Ministry of Labour, Responding Parties
Health and Safety - Employer seeking suspension of 2 of 7 orders made by Inspector following incident at nuclear plant - In view of interim measures taken by employer, Board satisfied that suspension of orders would not endanger worker safety - Board also satisfied that employer has strongprimafacie case case for successful appeal - Suspension request granted
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; November 24, 1999
- These are applications pursuant to section 61(7) of the Occupational Health and Safely Act, R.S.O. 1990, c.0.l (the "Act") for a suspension of various orders issued by an Inspector. More particularly, the applicant is seeking the suspension of orders #0004 and #0006 in Field Visit/Report No. 877221 issued on August 25, 1999. The application to suspend these orders has been assigned Board File No. 2094-99-HS. The applicant has also filed an appeal of these orders, which has been assigned Board File No. 1838-99-HS. The text of orders #0004 and #0006 are set out below:
#0004 Pursuant to section 25.2(h) of the Act, the employer shall take every precaution reasonable in the circumstances for the protection of a worker by ensuring that the exposed live electrical equipment including switches and fuses as located in the relay building be guarded in accordance with Rule 2-200 of the Ontario Electrical Code.
#0006 Pursuant to section 25.2(h) of the Act, the employer shall take every precaution reasonable in the circumstances for the protection of a worker by ensuring that the maintenance of the live equipment as located in the relay building be done by an approved insulated or insulating devices and tongs, rubber gloves, boots, amts, etc. which shall always be maintained in a proper condition for use in accordance with Rule 2-306 of the Ontario Electrical Safety Code.
Board File No. 2097-99-HS is a suspension request relating to orders #0004 and #0006 in Field Visit/Report 847832 issued on September 22, 1999. These orders simply make reference to the aforementioned orders and provide a date for compliance. The applicant is seeking to appeal these orders, which has been assigned Board File No. 2096-99-HS.
All of these matters are related and arise out of the same incident. On July 19, 1999, a Nuclear Operator, Bill Collins, was directed by his supervisor to open a relay panel switch in the switchyard relay room at the Bruce Nuclear 5-8 Plant. The worker attempted to open the switch using an improper grip which resulted in his right index finger extending past the insulated handle of the switch and coming into contact with the live exposed metal portion of the switch. As a result of the contact with the live part of the switch, the worker received an electric shock. The worker then altered his grip on the switch handle and completed the isolation of the switch without further incident. The worker reported no further injury as a result of the shock.
An Inspector from the Ministry of Labour investigated the incident and issued seven orders. The applicant has complied with or is in the process of complying with five of those orders. The remaining two orders are the subject matter of these applications.
In dealing with a request to suspend on order, the Board's approach is set out succinctly in The Regional Municipality of Hamilton-Wenlworth, [1998] OLRB Rep. July/Aug. 709:
Three factors have generally been considered by the Board when determining whether a suspension of an order is appropriate in the circumstances:
(a) whether the suspension of the order (or, alternatively, the failure to suspend 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.
It is fair to say that the onus lies upon the party desiring the suspension order ought to issue. Furthermore, the decision of Adjudicator Herman in General of Canada Limited (File No. 3666-96-HS, decision dated June 2, 1997) stands for the proposition that a certain degree of deference must be afforded to decisions made by inspectors for the purposes of considering the suspension of these orders pending their appeal. In the absence of some persuasive reason to interfere with that order pending the hearing of the appeal on the merits, the original order should not be suspended.
The applicant has undertaken a number of initiatives to ensure worker safety should order #0004 be suspended pending a hearing into its merits. The applicant has developed a training course for its employees who may operate relay switches. Pending the hearing of the appeal, the applicant has A' also ensured that all switch operation in the switchyard relay building will be done by Ontario Hydro Services Company Site Protection and Control Technicians, who are trained in how to operate the switches safely. Finally, the applicant is restricting access to the relay rooms only to qualified persons. In regard to order #0006, the applicant submits that it is no longer seeking the suspension to those portions of the order requiring the use of gloves. The applicant continues to seek the suspension of that portion of the order requiring the use of an approved tool. Further, the applicant has agreed to require its workers to wear approved safety gloves in the operation of the switches. Having regard to the interim measures the employer has instituted pending the determination the appeal, the Board is satisfied that the suspension of orders #0004 and #0006 would not endanger worker safety.
Upon reviewing the materials filed by the parties, the Board finds that the applicant would be prejudiced if the orders in dispute were not suspended. While the Ministry of Labour challenges some of the assertions put forward by the applicant, the Board is persuaded that the applicant will experience real and substantive costs if the orders are not suspended.
The applicant has raised two arguments in the appeal of the orders in dispute. Firstly, that compliance with the orders will not improve workplace safety and will not prevent shock incidents similar to the one giving rise to the orders. The applicant maintains that the additional training provided to employees is the best method to ensure safety. Secondly, that the Inspector erred in applying the respective rule of the Ontario Electrical Safety Code as it does not apply to the applicant's operations. The Ministry of Labour has challenged many of the factual underpinnings of the applicant's positions. There would appear to be conflicting facts as well as points of law relevant to the appeal. When such is the case, and where the safety of employees would not be jeopardized by suspending the orders, I am prepared to assess whether the applicant has a strong prima facie case based upon the factual assertions contained in its application. Since the applicant maintains that its training programs meet its obligations under the Act and that the Ontario Electrical Safety Code is not applicable, I am satisfied, for the purposes of determining whether to suspend the operation of the orders in dispute, that the applicant does have a strong prima facie case for a successful appeal.
The Board, pursuant to section 61(7) of the Act, hereby suspends the operation of orders 87722 1-4, 847832-4, 87722 1-6 and 847832-6 pending the disposition of their appeal. Thus, the request in Board File Nos. 2094-99-HS and 2097-99-HS to suspend the orders under appeal is granted.
The appeals in Board File Nos. 1838-99-HS and 2096-99-HS are remitted to the Manager of Field Services to have a Labour Relations Officer assigned to attempt to mediate a resolution of this matter.