Ontario Labour Relations Board
0860-99-HS Minto Yorkville Inc., Appellant v. Mike Bibeau, Inspector and Ministry of Labour, Responding Parties v. Canadian Institute of Public and Private Real Estate Companies, Intervenor.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Carl Peterson, C. Sherriff-Scott and D. Belonger for the appellant; Katherine Livingstone for Mike Bibeau and Ministry of Labour; Norman Keith and Michael Brooks for the intervenor.
DECISION OF THE BOARD; March 6, 2000
This is an appeal under section 61 of the Occupational Health and Safety Act, R. S. O. 1990, c. 1 as amended (the “Act”) from the order made by Inspector Mike Bibeau in Field Visit No. 877888 issued on May 19, 1999 directing the appellant to provide a Notice of Project as a constructor under the Act. The appeal came before the Board for hearing on March 3, 2000. The Board, by decision in this matter dated February 24, 2000, outlined the nature of the motion made by the Canadian Institute of Public and Private Real Estate Companies (“CIPPREC”) to intervene in this proceeding. The Board, in its February 24th decision, adjourned the motion made by CIPPREC to the panel of the Board scheduled to hear the matter.
When the hearing was convened in this matter, the parties made submissions with respect to CIPPREC’s motion to intervene. Following the parties’ submissions, the Board delivered the following oral ruling:
The Canadian Institute of Public and Private Real Estate Companies (CIPPREC) seeks to intervene in this appeal under section 61 of the Occupational Health and Safety Act, R. S. O. 1990, c. 1 as amended (the “Act”). The Board, under section 61 (2) 5 of the Act, may add parties to the appeal. Section 61 (2) sets out who are the parties to an appeal. Section 61 (2) 5 states:
(2) The following are parties to the appeal:
- Such other persons as the Board may specify.
CIPPREC is a corporation without share capital incorporated under the Corporations Act of Ontario. Its letters patent were issued more than 20 years ago. It is therefore a person within the meaning of section 61 (2) 5.
This appeal will require the Board to determine whether the appellant who had engaged Eastern Construction as its construction manager (the entity that filed a Notice of Project at the project of which the appellant was the owner) was the (or a) constructor at that project. The ramifications flowing from that determination are significant as the obligations under the Act imposed on constructors are far broader and expose constructors to far greater risks than are imposed on or faced by owners. Both the appellant and CIPPREC submit that this proceeding will have wide implications for the real estate development and construction industries.
CIPPREC contends that it can add a great deal to the Board’s understanding of the issue raised by this appeal by providing the Board with the real estate development industry’s perspective on the interpretation of the Act put in issue in this case. CIPPREC asserts that its intervention will not prolong the case. Rather, it will simply add to the relevant information that the Board will receive from the appellant to ensure that the Board has all of the information material to the issue before it to make its decision.
Counsel for CIPPREC submits that the appropriate test for the Board to use to decide whether to permit a person to intervene is whether that person will have a “direct and substantial interest in the outcome of these proceedings”. (See Maaten Construction, [1995] O.O.H.S.A.D No. 2, Office of Adjudication Decision No. OHS 95-02, decision dated January 10, 1995 at paragraph 3.) Counsel for the Ministry asserts that the proper test is much narrower. She submits that the appropriate test is whether the person seeking to intervene has been “directly or substantially affected by the inspector’s Orders. (See Joe’s Car Radio et al, [1996] O.O.H.S.A.D. No. 51, Office of Adjudication Decision No. OHS 96-48, decision dated October 31, 1996 at paragraph 12.)
Counsel for CIPPREC also argues that because there are serious policy implications that arise from the inspector’s order in this case, the Board is the appropriate forum to hear about those policy concerns. He points out that the prosecution process under the Act does not permit the exploration of those policy concerns. He also relies on the Board’s broad remedial authority under section 61 (4) of the Act to suggest that the Board should at least permit some policy discussion to take place where the issue before the Board is a novel one raising such serious and broad ranging concerns.
Although being directly affected by an inspector’s order has been considered the appropriate test for determining whether a person or party has the right to appeal that order under section 61 (1) of the Act, in my view, that is not the correct test. Section 61(1) sets out who can bring an appeal, (employer, constructor, licensee, owner, worker or trade union) but even if the entity appealing falls into one of those categories, he, she or it must have some reasonable basis “to consider himself, herself or itself aggrieved by any order made by an inspector.” An entity may have a reasonable basis to consider itself aggrieved by an order without being directly affected by that order. (See K. Winter Sanitation Inc., [1999] OLRB Rep. Mar./April 219.) I believe that the appropriate test to apply in determining whether the Board should, in the exercise of its discretion under section 61 (2) 5, specify that a person not listed in