0482-00-HS The Crown in Right of Ontario, as represented by the Ministry of Correctional Services, Applicant v. Ontario Public Service Employees Union and Don Jewitt, Inspector, Ministry of Labour, Responding Parties.

0483-00-HS The Crown in Right of Ontario (Ministry of Correctional Services) Thunder Bay Correctional Centre, Applicant v. Ontario Public Service Employees Union and Ministry of Labour, Responding Parties.

BEFORE: John Morgan Lewis, Vice-Chair.

DECISION OF THE BOARD; June 22, 2000

1. This is an application pursuant to section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (the “Act”) seeking the suspension of orders issued by Inspector Don Jewitt in Field Visit Nos. 940963 and 940964 dated April 11, 2000. The application to suspend has been assigned Board File No. 0483-00-HS. The applicant has also filed an appeal of the two orders, which has been assigned Board File No. 2926-99-HS.

2. In its decision dated June 2, 2000, the Board directed the Registrar of the Board to appoint a Labour Relations Officer to meet with the parties and canvass settlement discussions. The Labour Relations Officer has reported to the Board that the parties had been unable to resolve these matters. Accordingly, the Board will now address the suspension request.

3. Inspector Jewitt attended at the Thunder Bay Correctional Centre (the “Centre”) on April 10, 2000 for a routine investigation following an assault on Correctional Officer Anna Gibbons by three female young offender inmates. The assault took place on April 4, 2000. Upon conducting the investigation of the safety procedures in place at the Centre, Inspector Jewitt noted a number of concerns, which are reflected in the orders he issued and which are set out as follows:

Order No. 1:

Pursuant to Subsection 25(2)(h) of the Occupational Health and Safety Act the employer shall take every precaution reasonable in the circumstances for the protection of a worker. The employer shall ensure that in the Young Offenders Unit of the above noted facility, a correctional officer remains in full view another officer while conducting resident checks or performing other duties in the dormitories or other isolated areas. This currently is not the practice.

Order No. 2:

Pursuant to the Occupational Health and Safety Act Subsection 25(2)(h) the employer shall take every precaution reasonable in the circumstances for the protection of a worker. The employer shall conduct a hazard analyses and risk assessment of the Young Offenders Unit at the above noted location. This will include but is not limited to issues surrounding i) risk of injury to workers from violence ii) staffing levels and scheduling, ii) barriers/shields, iii) lighting, iv) building restrictions, vi) worker procedures viii) and worker training in procedures. The Joint Health and Safety Committee shall be consulted in the establishment and maintenance of the program outlined above. This order shall be complied with by 31-May-2000

4. In dealing with a request to suspend on order, the Board’s approach is set out succinctly in The Regional Municipality of Hamilton-Wentworth, [1998] OLRB Rep. Aug. 709:

Three factors have generally been considered by the Board when determining whether a suspension of an order is appropriate in the circumstances:

(a) whether the suspension of the order (or, alternatively, the failure to suspend the order) would endanger worker safety;

(b) the prejudice to the parties if the order is or is not suspended; and

(c) whether there is a strong prima facie case for a successful appeal of the order.

It is fair to say that the onus lies upon the party desiring the suspension order to establish that such an order ought to issue. Furthermore, the decision of Adjudicator Herman in General Motors of Canada Limited (File No. 3666-96-HS, decision dated June 2, 1997) stands for the proposition that a certain degree of deference must be afforded to decisions made by inspectors for the purposes of considering the suspension of these orders pending their appeal. In the absence of some persuasive reason to interfere with that order pending the hearing of the appeal on the merits, the original order should not be suspended.

5. As noted in the Board’s decision dated June 2, 2000, the applicant has asserted that Order No. 1 is ambiguous and seeks direction from the Board as to its scope. The responding parties, however, deny that Order No. 1 is ambiguous and agree that the actions already undertaken by the applicant are sufficient and are in compliance with Order No. 1. It is unclear whether the applicant is seeking to suspend Order No. 1, but in the event that it is, the Board finds that the request is rendered moot having regard to the applicant’s compliance therewith. The Board also declines to issue any direction in relation to Order No. 1 in light of the apparent agreement of the parties as to its intended scope.

6. With respect to Order No. 2, in balancing the factors set out above in paragraph 4, the Board finds it appropriate in the circumstances to allow the applicant’s request and suspend the operation of Order No. 2 pending its appeal.

7. It is conceded by counsel for Ministry of Labour that Order No. 2 is not based on an immediate threat to the health and safety of workers. The applicant has addressed the immediate health and safety concerns by complying with Order No. 1. Having regard to this fact, the Board is not persuaded that the suspension of Order No. 2 would necessarily endanger workers’ safety. The applicant was somewhat vague in the application in establishing the prejudice it will suffer should Order No. 2 not be suspended. Nevertheless, the Board is persuaded that the applicant will experience significant costs to complete the analysis contemplated by Order No. 2. Without the benefit of evidence, it is difficulty for the Board to determine the merits of the appeals. Having regard to the Board’s findings that the suspension of Order No. 2 would not endanger workers’ safety, the Board finds the factors cited earlier favour the granting of the suspension request.

DISPOSITION

8. The Board, pursuant to section 61(7) of the Act, hereby suspends the operation of Order No. 2 in Field Visit Nos. 940963 and 940964 dated April 11, 2000 pending the disposition of its appeal. Thus, the request in Board File No. 0483-00-HS is granted.

“John Morgan Lewis”

for the Board