Loblaw Companies Limited v. Mike Hartman and Ministry of Labour
Board File Nos.: 3620-99-HS, 3621-99-HS Date: April 6, 2000 Before: D. L. Gee, Vice-Chair
Decision of the Board
1Board File No. 3621-99-HS is an application filed by Loblaw Companies Limited (the "applicant") seeking the suspension of an order of an Occupational Health and Safety inspector dated February 10, 2000. The order stipulates that the applicant is to ensure that the double picker is loaded in a safe manner and that product is not stacked above the backrest. The Ministry of Labour and the worker who was involved in the work refusal that led to the inspector's order oppose the applicant's request for a suspension.
2Three 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.
3Based on the materials filed, it is reasonable to assert that the workplace would be safer if the applicant was to comply with the inspector's order than if it did not. The safety of the workers would be diminished if the Board was to suspend the inspector's order.
4The effect of compliance with the inspector's order on the applicant is asserted to be two fold. The applicant asserts that compliance with the order will create financial considerations but does not quantify such. The applicant refers to the effectiveness of management being challenged "if a worker believes he/she personally has the opportunity to contact other agencies". The worker does in fact have such a right. Where health and safety is concerned such is the very purpose of the Occupational Health and Safety Act. It is absurd to suggest that the Board would suspend an inspector's order (which upheld the worker's concerns that were rejected by management) in order to dissuade workers from exercising their statutory rights. Thus, I am not persuaded that the applicant has articulated any material negative effect that compliance with the inspector's order will have on it.
5Finally, the applicant has not presented a strong prima facie case for a successful appeal of the order.
6In 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.
7Having regard to all of the foregoing, I am not persuaded that the inspector's order of February 10, 2000 should be suspended pending a hearing on the merits.
8Board File No. 3621-99-HS is hereby dismissed. Board File No. 3620-99-HS will continue in the normal course.
"D. L. Gee" for the Board