3493-98-HS Roberts Warehousing & Storage, Applicant v. Ministry of Labour, Responding Party.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Stan J. Roberts for the applicant; Don A. MacNeil for the responding party.
DECISION OF THE BOARD; April 10, 2000
1This is an application under section 61(1) of the Occupational Health & Safety Act (the "Act") appealing the order of a Health and Safety Inspector, Donald MacNeil, against Roberts Warehousing & Storage, in Field Visit No. 831776 dated January 13, 1999. That order requires the applicant to heat its building to not less than 18° Celsius in accordance with section 129 of the Regulations made under the Act.
2The hearing in this matter took place on March 21, 2000.
3The parties agreed on almost all of the relevant facts.
4The company owns and operates an industrial mall in Woodstock, Ontario. The industrial mall is a former warehouse in which various tenants rent space in order to operate their businesses. Some tenants manufacture products in their space and have office space in support of such operations. Other tenants use their space simply as storage. Most tenants have their own entrance which connects their space to the outside.
5Under their tenancy agreement with the company, all tenants are responsible for heating their own space.
6There is a large common area in the mall, which is a sort of a hallway between the vendor units. The hallway is used to deliver goods from common loading bays to the tenants' space. Some tenants also use the hallway to store goods and supplies. The large delivery bays and docks are located at the end of the hallway. Plastic blinds cover the delivery bay doorways to keep the cold air out. All of the hallway space is unheated.
7The only real factual dispute is the degree to which the bay doors remain open due to loading and unloading of goods and materials. The Ministry's only evidence was that on the five or six occasions when the Inspector was at the mall, there were no trucks loading and unloading. However, the owner of the mall, Mr. Roberts, testified before the Board that trucks come and go frequently. While I accept Mr. MacNeil's evidence, the Ministry was in no position to dispute Mr. Roberts' facts as it only had information regarding the five or six days that the Inspector attended the mall.
Decision
8The Inspector's order was made pursuant to section 129 of Regulation 851 under the Act. Section 129 states, in part:
- (1) Subject to subsection (2), an enclosed workplace shall be at a temperature,
(a) suitable for the type of work performed; and
(b) not less than 18° Celsius.
(2) Clause (1)(b) does not apply to a workplace,
(a) that is normally unheated;
(b) where the necessity of opening doors makes the heating of the area to the temperature specified in clause (1)(b) impracticable.
9Roberts argued that section 129(1) does not apply to it for three reasons: first, the hallways are not a workplace; second, the hallways are normally unheated and thus exempted by section 129(2)(a); and third, the necessity of opening doors makes the heating of the area impracticable.
10The Ministry argued that the area in question was a workplace since people worked there and it was enclosed. The Ministry also argued that the hallways are not normally unheated because they hold the pipes necessary to heat them. Finally, the Ministry argued that it was not impracticable to heat the area because the doors were not frequently open, and there were blinds in place to keep the cold air out as much as possible.
Decision
11The difficulty with the Ministry's argument that section 129(2)(b) does not apply is that the amount and quality of evidence they were able to lead on the issue is limited. The only facts before me are that the bay doors are frequently open to permit loading and unloading. While they may well not have been open on the limited occasions that the Ministry was present at the site, those facts are not such as to cast sufficient doubt on the company's evidence. Essentially, the area in question is an unheated warehouse which is frequently open to the outside air. Given the size of the doors, the amount of time that they remain open and the size of the area to be heated, I find that it would be impracticable to heat the common areas of the industrial mall to the temperature prescribed by the Regulation. The application is therefore allowed.
"Brian McLean"
for the Board