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Prince Metal Products Limited v. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 880
3368-99-HS Prince Metal Products Limited, Applicant v. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 880 and Ministry of Labour, Responding Parties.
3369-99-HS Prince Metal Products Limited, Applicant v. Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local 880 and Ministry of Labour, Responding Parties.
**BEFORE:** D. L. Gee, Vice-Chair.
**DECISION OF THE BOARD;** April 12, 2000
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[1] Board File No. 3369-99-HS is an application filed by Prince Metal Products Limited (the “applicant”) seeking the suspension of an order of an Occupational Health and Safety inspector dated February 02, 2000. The order stipulates that the applicant is to obtain a professional engineer’s report stating that the guards installed around gas heaters are not likely to endanger a worker. The Ministry of Labour opposes the applicant’s request for a suspension.
[2] Three factors are typically considered in the course of determining whether or not to grant a suspension pending a hearing on the merits. In the case of General Motors of Canada Ltd. (June 2, 1997, 3666-96-HS) such factors were described as follows:
(i) whether the suspension of the order would endanger worker safety;
(ii) the degree of prejudice to the employer if the order is not suspended; and
(iii) whether there is a strong prima facie case for a successful appeal of the order.
[3] The application form completed by the applicant specifically asks the applicant for its submissions in relation to the above three factors. The response given in relation to the first factor does not answer the question. The applicant simply states “The guard is in place. The appeal is regarding the requirement for an engineering stamp”. The inspector clearly felt that an engineer’s report was necessary in order to be ensured of the guard’s safety. Thus, it is reasonable to conclude that suspending the inspector’s order could potentially diminish the level of safety in the workplace.
[4] The applicant indicates that whether the refusal to suspend the order would have negative effects on the applicant is “N/A”. Accordingly, I will presume that compliance with the order would have no negative effect on the applicant.
[5] In answer to whether the applicant is more likely that not to succeed on its appeal the applicant indicates that there is a question as to whether section 54(1)(k) is applicable and that a guard rail, in the circumstances, cannot endanger the workers. I am not persuaded that the fact that an issue may exist as to whether section 53(1)(k) is applicable warrants suspending the inspector’s order.
[6] In addition to balancing the factors which have traditionally been considered when determining whether or not to grant a suspension of an inspector’s order, I have considered the comments of Adjudicator Herman in General Motors of Canada Ltd. wherein he noted that deference should be accorded to inspector’s orders:
> It is important that inspectors’ orders that are reasonably and properly made not be lightly overturned pending appeal. The statutory scheme establishes the inspector as the decision-maker of the first instance, and the purposes of the Act are best served if his or her decisions prevail, in the absence of persuasive reason otherwise, and pending the full application for review.
[7] Having regard to all of the foregoing, I am not persuaded that the inspector’s order of February 02, 2000 should be suspended pending a hearing on the merits.
[8] Board File No. 3369-99-HS is hereby dismissed. Board File No.
3368-99-HS will continue in the normal course.
“D. L. Gee”
for the Board
minicounsel