Provincial Papers Inc. v. Communications Energy and Paperworkers’ Union Local 279, 2000 CanLII 12339

Provincial Papers Inc. v. Communications Energy and Paperworkers’ Union Local 279 and Ministry of Labour

Board File No.: 0698-00-HS, 0699-00-HS Date: June 28, 2000 Ontario Labour Relations Board

Before: John Morgan Lewis, Vice-Chair.

Decision of the Board

1Board File No. 0699-00-HS is an application to suspend a number of orders in accordance with section 61(7) of the Occupational Health & Safety Act, RSO, 1990, c. 0.1 as amended (the "Act"). The applicant is also seeking to appeal the aforementioned orders. The appeal has been assigned Board File No. 0698-00-HS. This decision deals only with the suspension request.

2As a result of a workplace incident, which occurred on May 5, 2000, a Health and Safety Inspector visited the applicant’s premises on May 5, 2000. The orders in dispute arise from Field Visit No. 942214 dated May 5, 2000 and are set out as follows:

Order No. 1

Without limiting the duty imposed by subsection (1), a supervisor shall,

(c) take every precaution reasonable in the circumstances for the protection of a worker.

The supervisor in this incident left the worker in a position where the worker was at risk.

The employer shall ensure that all supervisors take every reasonable precaution.

Order No. 2

Without limiting the strict duty imposed by subsection (1), an employer shall,

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

The clothing department does not appear to have at this time written policies, procedures and formalized training for workers working around in line nip hazards as at #5 paper machine first press first felt strech roll.

The employer shall ensure that policies, procedures and training are developed implemented and maintained for the clothing department.

Order No. 3

An in-running nip hazard or any part of a machine, device or thing that may endanger the safety of any worker shall be equipped with and guarded by a guard or other device that prevents access to the pinch point.

Where it is not possible to guard a in-running nip hazard a policy and procedure must be in place. The employer shall ensure that all in-running hip hazards on the paper machines are identified and guards put in place.

3The Board will consider a number of factors when determining whether a suspension on an order is warranted in the circumstances. Three primary factors are described as follows:

1. whether the suspension of the order would endanger worker safety;
2. the prejudice to the parties if the order is or is not suspended; and
3. whether there is a strong prima facie case for a successful appeal of the order.

4The Board has clearly demonstrated that a certain degree of deference should be afforded to decisions made by inspectors for the purpose of considering the suspension of orders pending their appeal. In absence of a clear and persuasive reason to interfere with the operation of an order pending its appeal, the order should not be suspended. This degree of deference is enhanced when workplace safety is in issue. I refer to the comments of the Board in R. J. Dungey & Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at paragraph 19:

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.

5The orders in dispute clearly impact upon workers safety. As such, the applicant must meet a high threshold to persuade the Board to suspend the operation of the orders pending their appeal. While the applicant claims that it would be prejudiced if the orders are not suspended, it has pleaded little in the way of facts to substantiate this claim. The Board recognizes that the applicant will be inconvenienced by the imposition of the orders but that is true of most orders issued by Health and Safety Inspectors. The applicant has failed to demonstrate significant prejudice, which would compel the Board to suspend the operation of the orders in light of the possibility of endangering workers safety.

6Without the benefit of evidence, it is difficult for the Board to determine the merits of the appeal. While the applicant will have a full opportunity to bring evidence in argument to support its position, at this point, I am not satisfied that is more likely than not to be successful in its appeal on the merits.

7Having regard to the material filed by the parties, the Board is not satisfied that it should exercise its discretion under 61(7) of the Act to suspend the operation of the orders in Field Visit No. 942214 dated May 5, 2000. Accordingly, this application for a suspension is dismissed. The appeal in Board File No. 0698-00-HS is remitted to the Manager of Field Services to have a Labour Relations Officer assigned to attempt to mediate a resolution of this matter.

8This panel of the Board is not seized.

"John Morgan Lewis"

for the Board