[1999] OLRB REP. NOVEMBER/DECEMBER 1108
3195-98-HS Workers Committee Members M. Bertoia, W. McNaught and J. Mullins, Danforth Joint Health and Safety Committee, Applicants v. Toronto Transit Commission and Ministry of Labour, Responding Parties
Health and Safety - Appeal from decision of Inspector dismissed on basis that it is moot
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: W McNaught, J. Mullins, M. Bertoia, C. Sweiger and P. McFawn for the applicants; Scott Williams, S. Quigley and Dan Haffey for the responding party; Bruce Arnott, Chris Bandara, Debbie Beasley and Paul Eddy for the Ministry of Labour.
DECISION OF THE BOARD; December 23, 1999
This is an appeal under section 61(1) of the Occupational Health and Safety Act (the "Act") filed on December 15, 1998. At the outset of the hearing on December 21, 1999 the Ministry of Labour made a motion to dismiss the application on the basis that it is now moot. After considering submissions from all of the parties the Board dismissed the application in an oral decision.
The following are the relevant facts. In the autumn of 1998, the worker members of the workplace occupational health and safety committee identified certain problems with the driver area configuration of some new buses acquired by the Toronto Transit Commission (referred to as the "TTC") The committee inspected and when the worker members were not satisfied with the results, contacted an inspector at the Ministry of Labour. The inspector visited the workplace and the worker members on the committee advised him of their concerns and indicated that they were seeking an ergonomic assessment. On December 1, 1998 he directed the TTC to "cause an ergonomic assessment to be done by a certified ergonomist". Apparently he was contacted by the TTC who requested that he allow it a time frame for the "internal responsibility system" to work. As a result he rescinded the order on December 11, 1998. On December 15, 1998 the appellants filed their appeal. That appeal states
Please be advised that we are bus Operators at the Danforth Garage of the Toronto Transit Commission at 1627 Danforth Avenue, Toronto, Ontario and that we believe that we are aggrieved by and wish to appeal the decision in Project/Premise Report #794703, December 11, 1998 to "rescind" an Order for an Ergonomic Assessment of RTS Nova Buses which was issued in Project! Premise Report #782319 (attached), December 1, 1998.
There have been to date approximately 20 Occupational Injuries suffered by Danforth Bus Operators on the RTS Nova series buses and approximately lOObus Operators at Danforth Division who have experienced pain and discomfort approaching injury on the RTS Nova Buses in the past 3 weeks The evidence presented to MOL Inspector Bandara clearly identifies the Operator Workstation as an acutal [sic] source of danger and hazard to Operators and the Ergonomic assessment is the essential tool required to eliminate the source of hazard and danger.
We request under Section 61 (1) of the Act that an adjudicator hear and dispose of our appeal as promptly as possible.
In April, 1999 the TTC provided the appellants with a report titled "Ergonomic Review of Nova RTS Bus Driver's Compartment". The hearing of this appeal commenced on December 21, 1999.
After considering the parties' submissions on the motion to dismiss the appeal the Board ruled orally as follows:
The real issue between the appellants and the TTC is the ergonomic safety of the Nova RIS buses. That issue is clearly not going to go away no matter what I rule on this motion. The problem is that the way this appeal has developed does not provide me with the tools and information I need to decide the real issue.
Originally the inspector directed the TTC to do an ergonomic assessment. It appears that that was a good place to start to address the perceived problems. It was what the worker members on the committee wanted. It appears to me that the inspector had in mind that getting the assessment was a place to start because an ergonomic assessment is not necessarily an end in itself rather it provides information. The inspector then apparently decided that it would be just as valuable to have the TI'C provide a starting point without an outstanding order and rescinded it.
The appellants not unreasonably appealed that rescission because presumably they wanted to insure that the assessment they were seeking was forthcoming. Eventually it did come. On its face it complies with the requirement in the original order to provide an assessment. The appellants are not satisfied with its contents. However, as I noted above, it is only a place to start. Now that the parties have that starting point they, including the Ministry, need the opportunity to go on from there. If I were to proceed to hear the "real" issues between the parties I would have to do so without the benefit of the inspector's view of the assessment let alone any determination by him on the actual ergonomic problems. That is not consistent with the scheme of the Act. I cannot conduct an adjudication on the alleged problems related to the configuration of the driver's station of the bus on the basis of an appeal of a decision to rescind an order for an ergonomic assessment, especially when an assessment of some kind has been provided.
Again, the Board is not saying that there is no dispute between the parties. However, if the Board is to engage in such a difficult and technically complicated adjudication the inspector has to have made a determination on the relevant matters first. Therefore the application is dismissed on the basis that it is moot as it seeks an ergonomic report which has been provided. There has been no determination from an inspector on the safety of the driver's station of the buses and therefore no appeal of such a decision which would necessarily provide the Board with the jurisdiction to adjudicate those issues.