3259-98-HS K. Winter Sanitation Inc., Applicant v. Ministry of Labour and Inspector John Ferreira, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Gavin May, Ken Winter and Roger Winter for the applicant; Stephen Mason and John Ferreira for the responding parties.
DECISION OF THE BOARD; February 1, 2000
This is an application pursuant to section 61(1) of the Occupational Health and Safety Act (the “Act”), appealing the order of a health and safety inspector, John Ferreira against Richard & B.A. Ryan Ltd. (“Ryan”) in Field Visit No. 832750, dated November 26, 1998.
The applicant, K. Winter Sanitation Inc. (the “company”) was the supplier of portable toilets and hygiene supplies to Ryan at the Silver Dart construction site at the time of the inspector’s order. By decision dated April 28, 1999, (K. Winter Sanitation Inc., [1999] OLRB Rep. Mar/Apr. 219) the Board, differently constituted, found that the company had status as an “employer which considers itself aggrieved by an order made by an inspector” within the meaning of section 61(1) of the Act, and as such was entitled to appeal the order made against Ryan.
The hearing in this matter took place on December 16, 1999. At the outset, counsel for the Ministry of Labour (the “Ministry”) advised that the portion of the inspector’s order with regard to the inadequate number of toilets on the construction site in question was being withdrawn. Accordingly, the issue before me was the inspector’s findings regarding the state of the clean-up facilities, including whether these facilities were equipped with flush toilets, in accordance with section 29 of Regulation 213/91 made pursuant to the Act.
Section 29 of Regulation 213/91 (the “Regulation”) provides as follows:
(1) The constructor shall provide or arrange for the use of toilet and clean up facilities before work has started on a project.
(2) Workers at a project shall have reasonable access to the facilities required by subsection (1).
(3) For each group of fifteen or fewer workers, the toilet facilities shall consist of at least one flush toilet.
(4) If it is not practicable to provide the toilet facilities set out in subsection (3), the constructor shall arrange for comparable toilet facilities.
(5) For each group of fifteen or fewer workers, the clean up facilities shall consist of at least,
(a) hot running water, wash basin, soap or hand cleaner and paper towels;
(b) if the facilities under clause (a) are not practicable, cold running water, wash basin, soap or hand cleaner and paper towels; or
(c) if the facilities under clause (a) or (b) are not practicable, hand cleaner and paper towels.
(6) The toilet facilities shall afford the user privacy and protection from the weather and from falling objects.
(7) The toilet facilities,
(a) shall be equipped with a toilet that has a toilet seat and cover;
(b) shall be equipped with a urinal trough in addition to the toilet, if the toilet facilities are portable or temporary;
(c) shall be provided with toilet paper and disinfectant;
(d) shall be illuminated by natural or artificial light;
(e) shall be serviced to maintain them in a clean and sanitary condition;
(f) shall be equipped with a locking door system;
(g) shall be ventilated; and
(h) where practicable, shall be heated. O. Reg. 213/91, s. 29.
The Evidence
John Ferreira (the “inspector”) is a Ministry of Labour inspector with 12 years inspection experience in the construction industry.
On November 26, 1998, at approximately 10:30 a.m., the inspector arrived at the Silver Dart construction site over which Ryan was the constructor. This site was located near Pearson International Airport, in the City of Mississauga. The inspector stayed at the site until approximately 12:15 p.m.. During that time he had occasion to speak to individuals on the site. He received a complaint from a worker working with an oil substance concerning the alleged inadequacy of the clean-up facilities, inspected two portable toilet facilities on the site, and issued the order which is the subject of this matter. It was the uncontradicted testimony of the inspector that the site was “sixty-five per cent” complete when he attended on November 26, 1998, and that the site had access to a supply of electricity, and was in fact making use of same on that date.
With respect to the clean-up facilities, it was the inspector’s evidence that he inspected two portable toilets (“unit” or “units”). He found that in one of the units there was no sink, and in the other there was a sink but it produced only cold water. On this latter unit, the inspector noticed a rusty wire dangling from the exterior, which may have been the electrical connection used to power the unit to provide the means for heating its water. The inspector’s testimony was that neither he nor the site foreman, Tony Mastronardi, understood the purpose of this wire, and that, in any event, the wire was not connected to any source of power.
The inspector also testified that there were no paper towels in either unit, and that he found that while one of the units was equipped with hand cleansing soap, the other’s soap dispenser produced no soap when its lever was manipulated by the inspector on a single occasion. The inspector concluded that this soap dispenser was either frozen or had been depleted of soap.
Finally, the inspector testified that he inspected the toilets, and in both cases he could see no evidence that there was a flap or barrier between the toilet bowl and the holding tank below the toilet bowl. It was his uncontradicted evidence that, standing above either toilet bowl, he could see directly into the holding tank of each. He further testified that he flushed both toilets, and that upon doing so a small amount of green fluid was released from the toilet bowls directly into the holding tanks below. The inspector could not categorically say that either toilet bowl was without a flap