3533-99-HS; 3532-99-HS Canadian Waste Services Inc., Applicant v. Canadian Union of Public Employees and Ministry of Labour, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; March 27, 2000
- Board File No. 3533-99-HS is an application to suspend a number of orders made by Health and Safety Inspector, Don Cote, in accordance with section 61(7) of the Occupational Health and Safety Act (the “Act”). The applicant is also seeking to appeal the aforementioned orders. The appeal has been assigned Board File No.
3532-99-HS. This decision deals only with the suspension request.
The applicant employer, Canadian Waste Services Inc,(CWSI) asks for suspension of orders No. 1, 2, 3, 4, 5, 6, 7 and 8 arising out of Field Visit No. 867648 on February 3, 2000.
The employer submits the orders should be suspended because some of them have been complied with, because a suspension of the orders will not jeopardize the health and safety of the workers and employees have received training to operate the compaction vehicles safely.
The employer asserts it will suffer considerable prejudice if the orders are not suspended pending an appeal because similar orders were issued in August 1999 and complied with to the satisfaction of the Ministry. Circumstances have not changed and it is therefore prejudicial for the Ministry to issue these new orders five months later.
The employer submits it has a strong case for the appeal of the orders and there are good reasons to vary the inspector’s orders at this time. All of the CWSI employees who work with compaction truck units have received training on safe operation of the compaction vehicles and there is no danger created by the way in which the front and side-load compaction vehicles are currently operated at CWSI.
The Ministry of Labour in its submissions takes the position that Orders No. 1 and 2 have been complied with and the appeal with respect to those orders is moot. The Ministry states there is no point to the suspension request concerning Order No. 5 as the chain that has been provided is an acceptable block and should remain in use. If it’s use is discontinued the workers will be in danger from the falling compaction plate hazard identified in the report. The Ministry states the appeal of Order No. 8 appears to be moot. The required interim written policy has been promulgated.
For the purposes of the suspension request that leaves Orders No. 3, 4, 6, and 7 (The Board notes there are two Order No. 7 – the first Order No. 7 is the compliance date for Order No. 6; the second Order No. 7 deals with the hazard of the continuous ram operation.
The Ministry opposes any suspension of Orders No. 3, 4, 6 and the second Order No. 7 (which is on page 4 of the F.V.#867648).
It is the Ministry’s position that the employer has not addressed the hazards and the danger to employees outlined in the remaining orders.
Canadian Union of Public Employees (“CUPE”), one of the workplace parties, opposes the applicant’s request to suspend the Inspector’s orders. CUPE submits the suspension of the orders would endanger worker safety. CUPE submits the employer would incur a small cost as a result of complying with the orders. CUPE asserts there is no prejudice to the applicant if the orders are not suspended.
The employer’s reasons for requesting a suspension of the Inspector’s orders pending the appeal being determined are not persuasive. CWSI asserts there is no risk to the safety of the workers and that it would suffer prejudice if the orders are not suspended. However CWSI does not explain how the company would be prejudiced if the orders are not suspended. Further the company does not address the safety concerns raised by the Inspector in Orders No. 3, 4, 6 and the second Order No. 7.
The Board in paragraph 19 of R.J. Dungey & Sons Lt., [1999] OLRB Rep. January/February 82 made the following comments which are appropriate in the instant case:
19. Furthermore, although the inspector’s order is under appeal there is, in my opinion, a rebuttable presumption that an inspector’s order is authorized by the OHSA and is correct. An inspector has the statutory duty to administer and enforce the OHSA. An inspector’s decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to a hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so. Adjudicator Robert Herman noted in General Motors of Canada Ltd., supra, “…it is appropriate that deference be given to an Inspector’s decision on an application for suspension of his or her order. In the absence of some persuasive reason to interfere with that order pending the full application for review, it ought not to be suspended.” The burden of persuasiveness becomes greater, in my view, as the risk to the safety of workers increases with the suspension of the order.
The applicant has not provided compelling grounds that would persuade me to suspend the Inspector’s orders (what appears to be the remaining orders) prior to the hearing on the merits of the appeal.
This application is dismissed.
“Inge M. Stamp”
for the Board