0570-99-HS Corporation of the City of Thorold, Applicant v. Doug Hart (Inspector); Ministry of Labour and Thorold Professional Fire Fighters’ Association, Responding Parties.
1240-99-HS Thorold Professional Fire Fighters’ Association, Applicant v. Corporation of the City of Thorold, Doug Hart (Inspector) and Ministry of Labour, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
APPEARANCES: Stephen C. Raymond, B. Casselman and John MacLeod for the Corporation of the City of Thorold; Howard Goldblatt, Lisa Triano, Rick Honsberger, Bruce Carpenter and Jim Simmons for the Thorold Professional Fire Fighter’s Association; Bridget Lynett and Doug Hart for the Ministry of Labour and Doug Hart.
DECISION OF THE BOARD; January 27, 2000
1These are two appeals under section 61 of the Occupational Health and Safety Act, R. S. O. 1990, c. O. 1, as amended (the “Act”) in relation to several orders and decisions made by Doug Hart, an inspector under the Act. Board File No. 0570-99-HS is an appeal filed by the Corporation of the City of Thorold (the “City”) of two orders issued by Inspector Hart in F.V. No. 883319 dated May 12, 1999. Board File No. 1240-99-HS is an appeal by the Thorold Professional Fire Fighters’ Association (the “Association”) of the decision made by Inspector Hart in F.V . No. 883623 dated July 20, 1999.
2Counsel for the Association, at the outset of the hearing in these appeals, suggested that there were three issues before the Board in these two matters. He characterized the issues as:
a) whether the City complied with Inspector’s Hart orders of May 12;
b) whether the City’s actions since July 19 complied with i) the May 12 order and ii) the Act; and
c) whether the Board should issue an interim order requiring the City to do what it had done between May 12 and July 19 in compliance with the May 12 orders.
3The parties disagreed over whether there were two appeals or just one appeal remaining before the Board. Counsel for the City had advised the Board by letter dated July 27, 1999 that it was withdrawing its appeal “based on a Premise Report No. 883623 dated July 20, 1999” which stated that the City was in compliance with the May 12 order. It is the July 20, 1999 decision of Inspector Hart to which “Premise Report No. 883623” refers that is the subject of the Association’s appeal. Counsel for the City and counsel for the Ministry of Labour and Inspector Hart both submitted that as the City had withdrawn its appeal of the order issued on May 12, that appeal is no longer before the Board. Counsel for the Association expressed concern that the City’s appeal had been withdrawn for strategic reasons and suggested that the City’s withdrawal of its appeal was also a way of the City avoiding its obligations to comply with May 12 order because its withdrawal was based on the July 20 decision of Inspector Hart which is itself the subject of the Association’s appeal. Following the parties’ submissions on that issue, I gave the following oral ruling:
Orders (decisions) were issued by Inspector Doug Hart on May 12, May 19 and July 20, 1999 (F.V. Nos. 883319, 883317 and 883623). The City appealed the orders issued on May 12. The Association appealed the order issued on July 20. No appeal of the order made on May 19 was filed. The City, after receiving the order of July 20 decided it would withdraw its appeal.
Both the Ministry of Labour and the City take the position that the City has complied with the May 12 order (as clarified or amended by the May 19 order). That was the essence of the July 20 decision of Inspector Hart. The Association vehemently disagrees. It says that the City, between May 12 and July 19 complied with the May 12 order, but since July 19 has not complied with it. The Association says the inspector was wrong in his July 20 order in concluding that the City’s method for responding to a call complies with his earlier order.
I am satisfied that the only order now under appeal before the Board is the July 20, 1999 order of Inspector Hart. The issue before me is whether the decision of the inspector, in which he says:
“Writer was provided with the S.O.P.’s developed by the Thorold Fire Service in response to orders issued by the writer. The writer is satisfied that the corporation has achieved compliance with the orders issued.”
is correct. The determination of that issue, in my opinion, requires an assessment of the actions taken by the City to determine whether there was, in fact, compliance with the inspector’s earlier order and more generally, whether there was compliance with the Act.
Therefore, as the Association is the only appellant remaining, it will proceed first in its appeal.
4After I gave that ruling, the Association indicated that it wished to continue with its request for an interim order pending the final determination of its appeal. Rather than deal with the Association’s request at an oral hearing due to difficulties in scheduling, the Board directed that the Association’s application be dealt with by way of written submissions. The Association stated that the interim order it was seeking was:
a) a direction requiring the City to schedule not less than two full time fire-fighters to be on duty at all times in District 1, as was the case between May 12 and July 19, 1999; or, in the alternative
b) a direction requiring the City to instruct fire-fighters that fire-fighters will not be required to respond to calls in any district until there are at least two fire-fighters on the responding vehicle.
In order for the City to comply with alternative b), the City must either:
i) schedule two fire-fighters to be on duty at all times;
ii) call fire-fighters to reply to calls as needed (current District 1 system); or
iii) a combination of i) and ii).
Counsel for the Association made clear that its request for the interim order was without prejudice to any position the parties may take in the proceedings before me or in any other proceeding and the implementation of the interim order will be subject to the collective agreement between the City and the Association.
5In consultation with the parties, the Board established the following timetable for submissions with respect to the Association’s request for an interim order. The Association is directed to deliver to the Board and to counsel for the other parties its submissions in support of its request not later than Friday, February 11, 2000. The other parties are directed to deliver to the Board and to counsel for the Association their respective responses to the Association’s request for an interim order not later than Monday, March 6, 2000. The Association is directed to deliver its reply, if any, to the Board and to counsel for the other parties not later than Monday, March 13, 2000.
6The Association’s appeal in Board File No. 1240-99-HS will be proceeding to hearing before the Board commencing on August 28, 2000. Counsel for the Association is directed to advise the other parties on or before August 8, 2000 whether the Association will be calling expert evidence at the hearing and if so, the nature of the expert’s evidence. The other parties are to advise counsel for the Association on or before August 21, 2000 whether they will be calling expert evidence. All parties are directed to deliver to each other and file with the Board, on or before August 21, 2000 a copy of all documents upon which they intend to rely at the hearing of this matter.
7Having regard to the City’s withdrawal of its appeal in Board File No. 0570-99-HS, the appeal in Board File No. 0570-99-HS is dismissed.
8The hearing of the appeal in Board File No. 1240-99-HS will continue before the Board at its hearing room at 505 University Ave, Toronto, commencing at 9:30 a.m. local time on August 28 and 29, October 2, 3, 11, 12, and 17, 2000.
9This panel of the Board remains seized with this matter.
“Harry Freedman”
for the Board