Corporation of the City of Thorold v. Thorold Professional Fire Fighter's Association, 1999 CanLII 20196

[1999] OLRB REP. NOVEMBER/DECEMBER 983

0570-99-HS; 1240-99-HS Corporation of the City of Thorold, Applicant v. Doug Hart, Ministry of Labour and Thorold Professional Fire Fighter's Association, Re­sponding Parties; Thorold Professional Fire Fighter's Association, Applicant v. Corpo­ration of the City of Thorold, Doug Hart and Ministry of Labour, Responding Parties

BEFORE: John Morgan Lewis, Vice-Chair.

DECISION OF THE BOARD; November 29, 1999

1. By letter dated October 19, 1999 counsel for Thorold Professional Fire Fighter's Association (the "Association") requested that the Board suspend the operation of an Order of a Health and Safety Inspector pursuant to section 61 of the Occupational Health and Safety Act, R.S.O. 1990, c.O. 1, as amended. The Order in dispute was issued in Field Visit/Report 883623 on July 20, 1999. Typically, such a request would be filed on Form A-67 and be assigned its own Board File. In the circumstances of these proceedings, however, the Board felt it appropriate to deal with the Association's request as part of Board File No. 1240-99-HS. In adherence to the Board's decision dated November 3, 1999, the Board received submissions regarding the suspension request from counsel for the Association and from counsel for the Corporation of the City of Thorold (the "City"). Before proceeding with the merits of the suspension request, it would be useful to provide some background information regarding these matters and the conduct of their litigation.

Background Information

2. The City has operated a fire department since about 1950. At different times of the day, there is anywhere from one to three full-time fire fighters on duty. Presently, the fire department is comprised of 10 full-time fire fighters and up to 150 volunteer fire fighters. On May 12, 1999, Inspector Doug Hart issued Orders 001 and 002 in Field Visit/Report No. 883319. The Orders require that:

001 - The City shall, as a reasonable precaution, insure that an emergency response vehicle/van response to an emergency scene with at least two (2) trained personnel.

002 - The City shall write a standard operating procedure for the above, provide instructions to fire fighters and copies to the Ministry of Labour.

3. The City complied with the Orders immediately. On May 21, 1999, the City filed an appeal of the Orders. The appeal was assigned Board File No. 0570-99-HS. The City also filed a request for the suspension of the Orders. At the request of the City, the suspension request was withdrawn with leave of the Board on June 4, 1999.

4. On July 20, 1999, Inspector Hart issued a further Order in Field Visit/Report 883623 (the "July Order"). The relevant portions of the July Order are reproduced below:

Writer was provided with S.O.P.'s developed by the Thorold Fire Service in response to order(s) issued by the writer. The writer is satisfied that the corporation has achieved compliance with the orders issued.

In the event that the association does not believe compliance has been achieved they may appeal this report. The writer has contacted Mr. Ed. Hunt @ 416-326-7410 Sr. Mediator O.L.R.B. and apprised him of this situation.

A copy of this report to be posted.

5. The Association appealed the July Order on July 22, 1999. In its decision dated July 26, 1999, the Board determined that the Association's appeal was timely and assigned it Board File No. 1 240-99-HS. Having regard to the submissions of the Association, the Board abridged the time limits normally imposed in such appeals and directed the Registrar to set Board File Nos. 0570-99-HS and 1240-99-HS down for hearing as soon as possible.

6. On July 27, 1999, the City wrote to the Board withdrawing its appeal being the subject matter of Board File No. 0570-99-HS. In its decision dated July 28, 1999, the Board held that it would not determine whether Board File No. 0570-99-HS could be withdrawn at that time as it was a matter to be determined by the panel hearing these matters.

7. These matters were scheduled to be heard on September 14, 1999. On the date of hearing, the parties agreed to adjourn the applications sine die. On October 19, 1999, the Association wrote to the Board requesting that these matters be re-listed for hearing. The Registrar has set these matters down for hearing on January 26, 2000.

Suspension request

8. The City's first position with respect to the request for suspending the July Order is that it ought to be dismissed as the Association did not request that the July Order be suspended until virtually three months had passed. The Board is persuaded that the delay that occurred prior to the Associating seeking a suspension of the July Order is relevant to the Board's determination of whether the July Order ought to be suspended. Upon considering the fact that the Association delayed the filing of a request for a suspension of the Inspector's Order for a period of three months, the Board declines to exercise its discretion to grant the Association's request to suspend the July Order. The Board's reasons are as follows.

9. Although this is the first time the Board has commented on the effect of a request for a suspension of an Inspector's Order not having been made in an expeditious fashion, the Board has had prior experience with the granting of interim relief which is a similar power. Under the provision of the Labour Relations Act, 1995, S.O. 1990, C.L. 2 as amended, the Board was granted the power in section 92.1 to grant interim relief in pending or intended proceedings on such terms as the Board considered appropriate. Reference is made to the Board's jurisprudence in granting interim relief under section 92.1 as the analysis for both granting a suspension request and granting interim relief is similar in nature.

10. In determining whether to grant an application for interim relief, the Board fashioned a two­-part test. The first branch of the test required the Board to be satisfied that an "arguable case" for the remedy requested in the main application had been made out by the applicant. The second branch of the test required the Board to consider the relative harm that may result from granting or not granting the interim order sought. The Board utilized as a factor to be considered in weighing of the relative harm, the effect of any delay in the bringing of the application for interim relief. I refer to the following passage from the Board's decision in Morrison Meat Packers Ltd., [1993] OLRB Rep. Apr. 358 at paragraph 19:

However, given the emphasis placed on expedition in both the statute and the rules (the present matter came on for hearing within five days of the filing of the application), the Board will expect applications under section 92.1 to be filed in extremely close proximity of the events giving rise to the application. An applicant who delays undermines its own ability to convince the board of any urgent or pressing need for interim relief. Perhaps more important, however, as the passage of time between the events giving rise to the request and its determination increases so too does the board's ability to quickly intervene decrease. Furthermore, and at least to the extent that granting an interim order interferes with an employer's management of its enterprise, the length of time during which an employer's action has been implemented may easily impact on the harm consequent from any Board order effectively undoing that measure, even on an interim basis.

See also Bryan Forde, [1993] OLRB Rep. Dec. 1296 and William Nielson Ltd., [1994] OLRB Rep. March 326.

11. An application to suspend the operation of an order pending the appeal on its merits is very much an interim proceeding. In dealing with a request to suspend an order, the Board's approach is set out succinctly in The Regional Municipality of Hamilton-Wentworth, [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.

12. The concept of delay is relevant to the assessment of the first two factors in the analysis just as it was in determining the potential for harm under the interim relief provisions. As the Board stated in Morrison Meat Packers Inc., supra, "an applicant who delays undermines its own ability to convince the Board of any urgent or pressing need for interim relief." Having regard to the Association's three month delay in seeking a suspension, it is apparent that the Association did not believe that the continued existence of the July Order would endanger worker safety or cause the Association prejudice. Had such been the Association's belief, this application would have been brought immediately following the issuance of the July Order.

13. Counsel for the City suggests that the suspension request ought to have been brought within one month of the issuance of the July Order and therefore, fit within the time period required for the filing of an appeal under section 61 of the Act. It is unnecessary for the Board to set any arbitrary time frame within which an application for suspending an order need be brought, as even a short delay may (or may not) be significant to the Board's decision in any particular case.

14. Upon considering the submissions of the parties, the Board hereby declines to exercise its discretion to suspend the operation of the July Order.