Tridel Corporation v. Ministry of Labour
File Nos.: 3336-98-HS, 3443-98-HS Date: January 20, 2000
3336-98-HS Tridel Corporation, Applicant v. Ministry of Labour, Responding Party.
3443-98-HS Discovery Place Limited, Applicant v. Ministry of Labour, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Richard Cushing, Vito Santoli and Jim Wilkinson for Tridel Corporation; B. Blumenthal, Stefan Pikor and Chris Beatson for the Ministry of Labour.
DECISION OF THE BOARD
1These two files are appeals by the applicant, pursuant to section 61 of the Occupational Health and Safety Act, R.S.O. ch. O-1 (the “Act”), of two Orders issued by a Health and Safety Inspector. (The Orders were directed to Discovery Place Limited, however this is one of the Tridel group of companies, and will be referred to as “Tridel” in this decision). Order number 802395, issued December 9, 1998 is the subject matter of Board File 3336-98-HS. It contains 12 separate orders, six directed to Tridel, three directed to Paramount Structures Ltd., two to Gottardo Masonry, and one to Primo Mechanical Inc. All three of these latter companies are subcontractors on the project. Order number 804183 dated December 12, 1998 is the subject matter of Board File 3443-98-HS. It contains two orders directed to Tridel and two to Gottardo Masonry.
2The Orders directed to Tridel are directed to it as a constructor. The orders directed to the subcontractors are directed to them as employers. Tridel is the only appellant. The Ministry challenged the standing of Tridel to appeal the orders directed to the subcontractors and at the first day of hearing moved to dismiss those appeals on that ground alone. At the hearing in this matter I dismissed this motion orally. My reasons for doing so are as follows.
3Section 61(1) provides as follows:
- (1) Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order.
4Counsel for the Ministry conceded that Tridel as a constructor met the first requirement of the section, that is that it was a constructor and as such fell within the class of parties entitled to appeal an order. However, he asserted that Tridel had not demonstrated that it had the necessary prejudice to be an “aggrieved” party. He relied on a decision of this Board, K. Winter Sanitation Inc., [1999] OLRB Rep. March/April 219. He submitted that this decision stood for the proposition that a party, to demonstrate that it is aggrieved for the purposes of section 61(1), must demonstrate that the Orders impact on it in a substantial way, either in pecuniary terms or in terms of a major disruption to its ability to work. He asked the Board to infer from the fact that no application for a suspension of the order had been made, and that the project had been completed on schedule, that the appellant could demonstrate neither.
5On the facts of this appeal, the Board disagrees. It is probably unwise, as well as unnecessary, to define in the abstract what constitutes a sufficient degree of legal or practical interest to demonstrate that a party is “aggrieved”. In this case Tridel as the constructor, is required, pursuant to section 23(1) (b) of the Act, to ensure that all subcontractors on the site comply with all the provisions of the Act and the Regulations under it, including any orders of the type that are the subject of this appeal. Indeed, this statutory obligation is repeated in order number 6 of Order 802395. Thus Tridel is placed under a legal obligation to ensure compliance with the orders by three subcontractors. Certain parties, even if they are actively working on a project, may not have the standing to appeal an order issued to another party on the site. However, given the statutory obligations of a constructor, it is difficult to envision an order made in respect of any work or equipment at a project which the constructor would not have the standing to appeal.
6I draw no inference from the fact that no request for a suspension was sought. Parties are expected to comply with an Order and, if they disagree with it, file their appeal. A request for a suspension is an extraordinary application that should not be made in most cases. Similarly, the fact that the project was completed on schedule simply demonstrates that Tridel is able to carry out its obligations under the Act and still carry on business in an efficient fashion. No doubt the orders continue to be of significance to Tridel in its ongoing construction activities, and the issue is therefore not moot as between Tridel and the Ministry.
7Accordingly, I find that Tridel has the status to appeal all of the Orders of the inspector. The parties advised that there were no other preliminary matters to be argued. This matter is scheduled to resume to deal with the merits of the appeal on June 5, 6, 12, and 13, 2000. I am not seized of these appeals.
“David A. McKee”
for the Board