1882-99-HS AquaNorth Farms Inc., o/a AquaNorth Forest Nurseries, Applicant v. Michele Belanger, Cathy Beerkens, Chantal Levesque, Donna Pilon, Caroline St. Onge, Alderic Godin, Tamara Liddle and Ministry of Labour, Responding Parties.
BEFORE: Christopher J. Albertyn, Vice-Chair.
APPEARANCES: James Smith for the applicant; no one appearing for the employees; Bruce Arnott and Murray Baker for the Ministry of Labour.
DECISION OF THE BOARD; May 24, 2000
This is an employer appeal filed pursuant to the provisions of subsection 61(1) of the Occupational Health and Safety Act (“the Act”) against orders issued by Inspector Baker, under Field Visit No. 811800 on September 9, 1999.
The proper citation of the applicant (“the employer”) is “AquaNorth Farms Inc., o/a AquaNorth Forest Nurseries”. The style of cause is so amended.
The employer’s appeal is not against the substance of the orders made by the inspector - the employer has, in fact, complied with the orders - but against its inclusion under the provisions of the Act. It contends that it operates a farming operation which is excluded from the Act. The Ministry takes the view that the operation falls under the Act. It contends that the employer’s operation, in Wawa, Ontario is covered by the definition of “logging” in the Act.
The facts are largely common cause. The employer carries on business as a tree nursery. At any time it will have between 8 million and 17 million seedlings or saplings in its nursery. Its customers are predominantly companies operating in logging, lumber and forest management. They purchase seedlings for their reforestation programs.
The employer purchases the raw materials needed for its business, including tree seeds, peat moss, chemicals (fertilizers, fungicides, herbicides, pesticides), trays and totes. The seeds are initially kept in strat, in the cooler, at low temperature to prevent them from germinating prematurely. There are two seeding periods: February/March and May/June. The production process starts in the production or service building. Trays pass along a conveyor belt. Growing media (peat moss, fertilizer vermiculite, and other chemical ingredients), which have been tumbled together in a mixing machine, are added. Seeds are mechanically planted into the growing media by specialized seeding equipment, the trays are moistened by mechanical irrigation equipment and they are then conveyed from the production building to one of the greenhouses. In the greenhouses, the seedlings are irrigated by sprinklers. Water-soluble fertilizers are added periodically.
Towards the end of May, the seedlings planted in February/March are moved on portable belts from the greenhouse to the outdoor holding area, to make space for the seedlings planted in May/June. The outdoor holding area has a retractable roof so advantage can be taken of fine weather during the summer.
The last stage of the growing process occurs in the late fall when seedlings are conveyed back into the production building, wrapped by hand in plastic and placed in plastic tubs or totes for storage in the large freezer, which is located in the production building. The seedlings remain dormant in the winter months, ready for planting in forests in the spring. They are then available for purchase and collection by the employer’s customers.
The production building consists of the seeding shack (an enclosed area in which the seeding occurs), storage and conveyance areas, the chemical storage room, the temperature control equipment (compressors and other equipment for freezing) a large freezer and the heating system or boiler room (a thermostat-activated furnace) for the greenhouses. Besides the production building, the greenhouses and the outdoor holding area, the employer’s Wawa operation includes a maintenance shop, a laboratory, office space and a loading dock from which the seedlings are collected by customers.
The typical hazards of an industrial establishment exist in the employer’s Wawa location.
The employer runs a year-round operation. In the winter and summer few employees are needed, but in the spring and the fall, during the seeding and packaging phases of the employer’s business, between about 12 and 30 employees are hired.
The employer is treated, for various statutory and organizational purposes, as a farming operation. According to the Ontario Ministry of Agriculture, Food and Rural Affairs, the employer satisfies all of the eligibility requirements for the farmland class property tax rate. The employer has a farm business registration. It is an approved professional member of Landscape Ontario. It submits premiums to the Workplace Safety & Insurance Board under the rate group 181, Fishing & Miscellaneous Farming, Greenhouses.
This provides part of the factual background for consideration of the employer’s appeal. The other factual piece is the historical background to the current definition of “logging” in the Act. Before coming to that, though, it is necessary to set