3803-99-HS Canadian Waste Services Inc., Applicant v. Canadian Union of Public Employees and Ministry of Labour, Responding Parties.
3804-99-HS Canadian Waste Services Inc., Applicant v. Canadian Union of Public Employees and Ministry of Labour, Responding Parties.
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; April 17, 2000
1Board File No. 3803-99-HS is an appeal filed by Canadian Waste Services Inc. pursuant to section 61(1) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 as amended (the "Act") of an order made by Inspector Walter Schilke under the Act on March 6, 2000, in Field Visit #867639. Board File No. 3804-99-HS is an application filed with the Board to suspend this order in accordance with section 61(7) of the Act pending the Board's determination of the applicant's appeal in Board File No.
3803-99-HS.
2The applicant seeks the suspension of the Inspector's order dated March 6, 2000. This order refers to a previous order made by the inspector in August, 1999 in Field Visit #887012 and reads as follows:
Order #1 of FV – 887012 has not been complied with.
Actuation of the control to complete the packing cycle shall be located so that the worker actuating the control:
(i) Cannot reach into the point-of-operation; and
(ii) Has a clear view of the point-of-operation
Expanded metal view window not adequate, creating a pinch point due to openings and not giving clear full view of the point-of-operation
Above order shall be complied with by March 21st, 2000
Order #1 of FV-887012 generally required the applicant to take every precaution reasonable in the circumstances for the protection of workers who are required to operate and work in the proximity to rear-loading mobile refuse compacting trucks, pursuant to section 25(2)(a) of the Act. Order No. 2 then went on to require the applicant to submit a compliance plan for Order No. 1 indicating the manner and anticipated date of compliance by September 17, 1999.
3The applicant takes the position that it has already complied with the order dated August 31, 1999 in Field Visit #887012 referred to in the March 6, 2000 order. The applicant contends that it complied with this order when it submitted a compliance plan to the Ministry of Labour as required indicating an anticipated compliance date of October 31, 1999 and then made modifications in accordance with its compliance plan.
4In support of its request for suspension, the applicant claims that it will suffer considerable prejudice if the order is not suspended, since the order requires it to remodify its trucks only five months after it modified them in accordance with its compliance plan. It also claims that the further modifications will not provide any additional benefit to the health and safety of the worker and that the two weeks time-frame imposed for compliance with the new order is an unreasonably short period of time in which to comply. In support of its position that prejudice would result if the order is not suspended, the applicant also notes that the Ministry of Labour is currently reviewing the existing draft guidelines for mobile refuse compacting trucks. In these circumstances, the applicant contends that it would be unreasonable to make further modifications to its trucks now, since these new modifications may not ultimately be in compliance with any forthcoming Ministry of Labour guidelines.
5The Ministry of Labour opposes this application for suspension of the inspector's order on the grounds that the modifications made by the applicant in accordance with its compliance plan were inadequate. In this respect, the Ministry submits that the modifications made still do not provide the operator with a full view of the point-of-operation and that workers continue to have access to the area in which components of the blade cycle within the truck. The Ministry submits that the health and safety of workers will not be assured if the order is suspended, since the modifications made to the trucks allow access to the actuating blade within the truck. The Ministry submits that there is also a risk to other workers working in the vicinity from ejected debris since the modifications made still do not provide the operator with a full view of the point-of-operation.
6The Ministry further notes that the applicant's compliance plan set out in its letter dated September 17, 1999 merely indicated that the applicant will install adequate protective screening under the plexiglass on all of rear-loading equipment by October 31, 1999. The Ministry contends that the two-week time frame is not unreasonable given that the order was originally issued in August 1999. In its response, the Ministry also notes that the review process for the existing guidelines is at a very preliminary stage.
7Section 61(7) of the Act reads as follows:
- (7) On an appeal under subsection (1), the Board may suspend the operation of the order appealed from pending the disposition of the appeal. [emphasis added]
8The factors the Board considers in determining whether to suspend the operation of an inspector's order are:
(a) whether the suspension of the order would endanger worker safety;
(b) whether the employer would be severely prejudiced by not suspending the operation of the order; and
(c) whether there is a strong prima facie for a successful appeal of the order.
(see R.J. Dungey & Sons Ltd., supra, at para. 17, and the decisions cited therein)
9In addition to considering these factors, the Board has shown deference to the orders of inspectors. In General Motors of Canada Ltd., (June, 1997, 3666-96-HS) Adjudicator Herman observed the following:
It is important that inspectors' orders that are reasonably and properly made not be lightly overturned pending an appeal. The statutory scheme establishes the inspector as the decision‑maker of the first instance, and the purposes of the Act are best served if his or her decisions prevail, in the absence of a persuasive reason otherwise, and pending the full application for review.
An applicant seeking the suspension of an order must therefore cross a relatively high threshold.
10In this case, the Board is not, however, satisfied that the applicant will suffer significant prejudice, which would compel the Board to suspend the operation of the order in light of the possibility of endangering worker safety. It is perhaps unfortunate that the applicant is required to make further modifications to its trucks shortly after having made modifications that did not, in the Inspector's opinion, meet the required standard. There is no suggestion in the material before the Board, however, that the Ministry ever specifically approved the proposed modifications made. In addition, the applicant's submission that further modifications may soon be required as a result of the Ministry's review of existing guidelines appears, at this stage, to be speculative.
11Without the benefit of evidence on the merits, it is impossible for the Board to determine the merits of the appeal. While the applicant will have a full opportunity to bring evidence and argument to support its position, at this point, I am not satisfied that it is more likely than not to be successful in its appeal on the merits.
12Having regard to the material filed by the parties in this application, the Board is not satisfied that it should exercise its discretion under section 61(7) of the Act to suspend the operation of the order made on March 6, 2000.
"Caroline Rowan"
for the Board