3438-99-HS Canadian Waste Services Inc., Applicant v. Northern Ontario Joint Council of the Retail Wholesale and Department Store Union District Council of the United Food and Commercial Workers International Union, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; March 17, 2000
1This is an application to suspend two orders issued by an Occupational Health and Safety Inspector, brought pursuant to section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990 ch. O-1 (the ”Act”). The Orders were issued on January 26, 2000 on Premis/Project file No. 931845. The appeal of these two orders was filed on February 22, 2000 as Board File 3437-99-HS. This request to suspend the Orders was filed along with it.
2The suspension request in respect of the first Order is easily dealt with. The Order required a guard to be placed around exposed moving parts that presented a potential in-running nip hazard. The appellant states that it has installed a guard which the Inspector acknowledges complies with his Order. It is not clear whether the appellant wishes to assert a right to run the machine without a guard, or whether it regards the issue as moot since the Order has now been complied with. Assuming it is the former, I decline to suspend the Order. Injuries sustained by workers who become caught in “nip-points” are among the commonest form of industrial accident. Any exposed moving part is potentially dangerous. There are no facts alleged in support of the assertion that the appellant “will not be able to fully operate the site” if it is required to keep the guard in place until the appeal is disposed of. Accordingly where there is some potential danger to workers and little or no prejudice to the employer, there is no basis for suspending the Order.
3The second Order arises from a finding that the area around a cut-out section of the floor of the plant was slippery. The opening is used to feed waste plastic from one level of the plant to a conveyor belt running below the cut-out area which transports the waste plastic into a hopper. Workers push plastic through the opening. The floor around the cut-out is covered in sheet steel. The inspector concluded that this surface was slippery and represented a hazard since workers might slip on the floor, fall through the opening, and land on the conveyor. He ordered the appellant to ensure that the floor area was “not to have a finish that is likely to leave the floor slippery”.
4On the basis of the material in the application for suspension, I cannot say that there is no danger. The appellant may be right, i.e. the floor may not be slippery. (If it is slippery it is very difficult to see how it would not be a hazard to workers.) The Order requires only that the surface of the floor area be varied so that it is not slippery. The appellant complains that this order is ambiguous. While the Order does not prescribe precisely what the appellant is to do, I accept the Ministry of Labour’s position that this lack of precise instruction is to give the appellant the flexibility to arrive at the most economic solution. There are no doubt many types of coverings which may eliminate the slippery nature of the floor surface. It is up to the appellant to determine which is the most appropriate and economical for it to use. To be required to change the nature of the surface of the floor around the opening may involve little or much expense. The appellant has provided no evidence. It is difficult to understand how the need to coat a small area of floor could prevent the appellant from “fully operating the site”. The question of potential cost has not been placed before the Board.
5In terms of the second Order, I am again driven to the conclusion that there is a potential hazard to workers and no significant prejudice to the appellant. The chances of success are not strongly in favour or against the appellant, and some deference, in considering whether to suspend on Order, should be given to the Inspector’s assessment: see General Motors of Canada Ltd. (June 2, 1997, Board File 3666-96-HS). As the Board has said many times, the primary consideration in any decision to suspend an Order pending an appeal is the risk to worker safety (see: R. J. Dungey & Sons Ltd [1999], OLRB Rep. Feb. 82 at para 20). In this application, the only factor which emerges from the application is that to suspend the Order would likely lead to a greater risk to the safety of employees of the appellant. I therefore decline to suspend this Order pending the appeal.
6This matter is referred to the Manager of Field Services.
“David A. McKee”
for the Board