Jeti Heating Inc. v. Ministry of Labour
3768-99-HS Jeti Heating Inc., Applicant v. Ministry of Labour, Responding Party.
3769-99-HS Jeti Heating Inc, Applicant v. Ministry of Labour, Responding Party.
BEFORE: D. L. Gee, Vice-Chair.
DECISION OF THE BOARD; April 7, 2000
Board File No. 3769-99-HS is an application filed by Jeti Heating Inc. (the “applicant”) seeking the suspension of orders of an Occupational Health and Safety inspector dated March 9, 2000 recorded in Field Visit No. 945104. The Ministry of Labour opposes the applicant’s request for a suspension.
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.
Based 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.
The applicant asserts that compliance with the inspector’s order will threaten its livelihood. No particulars in support of such assertion are given or explanation as to why such is the case. As a result, I am not persuaded that the applicant has articulated any material negative effect that compliance with the inspector’s order will have on it.
Finally, the applicant has not presented a strong prima facie case for a successful appeal of the order.
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.
Having regard to all of the foregoing, I am not persuaded that the inspector’s orders of March 9, 2000 should be suspended pending a hearing on the merits.
Board File No. 3769-99-HS is hereby dismissed. Board File No.
3768-99-HS will continue in the normal course.
“D. L. Gee”
for the Board