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: Brian McLean, Vice-Chair.
APPEARANCES: Richard Cushing, Vito Santoli and Jim Wilkinson for the applicants; Brian Blumenthal, Stefan Pikor and Chris Beetson for the Ministry of Labour.
DECISION OF THE BOARD; September 1, 2000
These two files are appeals by the applicants, pursuant to section 61 of the Occupational Health and Safety Act, R.S.O. ch. 0-1 (“the Act”), of two orders issued by a Health and Safety Inspector. (The Orders were directed to Tridel Corporation and Discovery Place Limited. However, Discovery Place Limited 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.
The Board held hearings in Toronto to consider these appeals on June 5, 6 and 12, 2000.
The Board’s jurisdiction to hear these appeals is set out in section 61 of the Act. The relevant sections of section 61 are 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.
(3.6) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to present their evidence and to make their submissions.
(4) On an appeal under this section, the Board may substitute its findings for those of the inspector who made the order appealed from any may rescind or affirm the order or make a new order in substitution therefor, and for such purposes has all the powers of an inspector and the order of the Board shall stand in the place of and have the like effect under this Act and the regulations as the order of the inspector.
(5) In this section, an order of an inspector under this Act or the regulations includes any order or decision made or given or the imposition of any terms or conditions therein by an inspector under the authority of this Act or the regulations or the refusal to make an order or decision by an inspector.
Following the presentation of evidence at the hearing, the applicant withdrew its appeal to certain of the Orders issued by the inspector, specifically Order 802395-007.
These appeals concern the construction of a medium-sized office or unit housing building in Scarborough. The applicants were the constructors of the building and engaged subcontractors to do some or all of the actual construction on the project. There was ultimately no dispute that as constructor of the project Tridel was responsible for ensuring that these sub contractors complied with the Act and Regulations while they were at the site.
At the hearing, Tridel called two witnesses Richard Cushing and Vito Santoli who gave evidence about the facts and circumstances which surrounded the Orders which are the subject of this appeal. The Ministry of Labour’s only witness was the inspector, Stefan Pikor who made the Orders in question.
The Board will consider the Orders one by one as evidence and argument was presented at the hearing. However, before doing that, it is worth commenting on some aspects of the evidence introduced by the parties. Tridel introduced photographs taken shortly after the inspection which gave rise to the Orders. While I accepted these pictures into evidence and I find them of some assistance in coming to my conclusions, there were instances where it was apparent that the photographs would have to be reviewed with considerable care because they might not accurately reflect the circumstances at the time the inspection was made and/or did not capture the exact deficiency caught in the inspection. However, I also have concerns about the evidence given by Inspector Pikor on behalf of the Ministry. He had not prepared notes to assist his memory at the time of the inspection and on at least one occasion, to put it charitably, his memory was clearly faulty.
Report 802395-001
- The first Order appealed was an order to clean up debris and pieces of concrete from the basement floor near where the workers had been building a concrete brick wall. The applicable Regulation is section 35(1) of the Regulations for Construction Projects which states:
35(1) Waste material and debris shall be removed to a disposal area and reusable material shall be removed to a storage area as often as is necessary to prevent a hazardous condition arising and, in any event, at least once daily.
There is one issue on appeal. It is a factual issue: was there debris present which caused a hazardous condition?
The photographs introduced by Tridel showed only part of the basement. Mr. Santoli, a site supervisor employed by Tridel and Mr. Cushing, Tridel’s safety manager testified in chief that there was no debris which could cause a hazard. Any debris which was created by the building of the wall was swept close to the wall so that workers could not trip over it. However, under cross-examination, Mr. Santoli acknowledged that there were cut concrete blocks which had been cleaned up after the inspection but before the photographs were taken. Accordingly, I am satisfied that there was debris present and that, given the size of the pieces of blocks and their location in relation to the wall, under the circumstances, it created a hazardous condition.
I also add that I agree with the Ministry’s interpretation of section 35(1) as it relates to the time at which debris must be cleaned up. In my view, section 35(1) is clear. Debris must be cleaned up any time it would create a hazard were it not cleaned up. If debris is not creating a hazard, it must be cleaned up at least once daily. I do not agree that because work is in progress, debris need not be cleaned up; if it is creating a hazard, it must be cleaned up at any time regardless of whether there is work in progress.
Report 802395-004
- This Order was an order for appropriate safety fencing at the east end of the building where there was a drop off into an open excavation. Even from the photographs provided by Tridel, it was apparent that the safety fencing in place at the time of the inspection did not comply with section 85(1) of the Regulation, which states:
- (1) A guardrail shall consist of a top rail, intermediate rail and toe-board and shall be capable of resisting any load that may be applied to it.
At a minimum, the guardrail was missing a toe board. Tridel argues that there was no hazard that required a guardrail, because it was impossible for a worker to fall into the excavation from the first floor and the distance from the garage roof to the ground was not such that a guardrail was required. I do not agree. It was quite possible under the circumstances for a worker to fall off the first floor to the garage roof and then over the garage roof into the excavation. The total drop was clearly 2.4 metres or more and therefore a guardrail was required pursuant to section 86(4)(b) of the Regulations.
Tridel also suggests that section 85 is not capable of being violated since it merely directs the specifications of the guardrail required by section 86 of the Regulations. In my view, each of the Regulations is capable of enforcement and of violation. A constructor may have erected a guardrail in compliance with section 85, which is not appropriate having regard to section 86.
Report 802395-005
- This Order required Tridel to erect guardrails so that balconies were guarded around their perimeter, rather than just, as Tridel did, guard access to the balcony. At issue in this case was the interpretation of section 86(3) of the Regulations, which states:
- (3) Subject to subsection (4), a guardrail shall be provided at the perimiter, open sides and ends of,
(a) a floor including the floor of a mezzanine or balcony;
(b) the surface of a bridge;
(c) a concrete roof while the formwork remains in place; and
(d) a scaffold platform, work platform, runway or ramp.
In my view, the Regulation is clear that guardrails are required (as was ordered by the inspector) around the perimeter of any balcony or mezzanine. The interpretation advanced by Tridel, renders the words “including the floor of a mezzanine or balcony” in section 86(3)(a) meaningless.
I also cannot accept Tridel’s argument that its guardrails were appropriate having regard to section 3 of the Regulation. That section states:
- An employer, owner or constructor may vary a procedure required by this Regulation or the composition, design, size or arrangement of a material, object, device or thing as required by this Regulation,
(a) if the procedure, composition, design, size or arrangement as varied affords protection for the health and safety of workers that is at least equal to the protection that would otherwise be given; and
(b) if the employer, owner or constructor gives written notice of the varied procedure, composition, design, size or arrangement to the joint health and safety committee or the health and safety representative, if any, for the workplace.
- It may (or may not) be that Tridel’s practice provides protection that is at least equal to that provided by the Regulation as required by subsection 3(1). However, Tridel has not met the other requirement of that section, namely, the requirement in section 3(2) that the Health and Safety Committee be advised, in writing, of any arrangement which purports to replace a Regulation. Accordingly the Order must be affirmed.
Report 802395-008
This Order requires that a ladder used to access formwork be secured at its top and bottom in accordance with section 80 of the Regulations.
The company acknowledges that the practice is a good one but asserts that it was not possible in this case. The Order stands, as the company’s explanation is no defence. A ladder must be secured at both ends to put it in compliance with the Regulations.
Report 802395-009
This Order was to install guardrails around the opening to a staircase in compliance with section 86(1) of the Regulations.
The company’s argument was that the inspection was conducted when the staircase was being formed and the guardrail was removed to allow for forming. Based on this argument, I am not prepared to rescind the Order. There is no defence of “work in progress” in the Act or Regulations as is suggested by Tridel.
Report 802395-010
This Order was to provide fall protection for workers working on a lift device while that device was in motion.
This Order concerned a worker using a scissors lift. The company’s witness Mr. Santoli testified that the lift was never in motion while workers were using the lift. The inspector testified that it was in motion while he was on his inspection and the workers were not protected. He also testified that at the time of his inspection Mr. Santoli advised him that he would provide full protection shortly.
Under the circumstances, I am satisfied that the lift was in motion at the time of the inspection. There was no reason for the inspector to make the Order unless he viewed the lift in motion. The appellant has not satisfied me that the Order was improperly made.
Report 802395- 011
This Order was for Tridel to install two cross braces on a scaffold which had been raised so that workers could do brickwork.
Tridel does not dispute that two cross braces were required under the circumstances but states that they were in place at the time of the inspection. Tridel introduced photographs in which the scaffold is shown with two cross braces at the appropriate location. The inspector’s evidence is that those cross braces were not all present when he made his inspection.
Once again, the Board must be careful in relying on the photographs. Inspector Pikor testified that the appropriate cross braces were not in place at the time of his inspection. There was no evidence called, other than the photographs, that the braces were in place. I am not satisfied that the photographs represented the state of affairs at the time of the inspection. Accordingly, the employer has not discharged the onus on it to overturn the order.
Report 804183-001
This Order required the installation of a guardrail at the opposite end of the building from the guardrail required by Report 802395-00. Tridel’s appeal rested on the argument that at no point did the drop from the structure to the ground meet or exceed the distance (2.4 metres) where guarding is required by the Regulation.
Tridel introduced photographs of the site which were taken a considerable time after the inspection was conducted. There was substantial disagreement regarding whether the photographs were at all reflective of the situation at the time the inspection which gave rise to the Order under appeal was made. There was no suggestion that anyone had actually measured the height of the platform in question to determine whether it was greater than 2.4 metres or not.
In my view, a Ministry Inspector ought to measure the height of a structure where he intends to make an order requiring guarding where the height of the structure is not clearly such that guarding is required. Nevertheless, Tridel has the onus. Were the structure not of such a height that guarding was required, it could have been very easy to measure it, preferably in the presence of the Inspector while he was conducting his inspection. Tridel did not do this. Instead, it seeks to rely on photographs taken days or weeks after the inspection was conducted. Such evidence is not enough to cause the Board to overturn the Order.
Report 802395-002
- This Order required Tridel to add additional lighting in the basement at the worksite. Section 45(1) of the Regulations states:
- (1) The areas in which a worker is present and the means of lighting access to and egress from those areas shall be adequately lit.
The appeal rested on a pure question of fact: Was the basement adequately lit?
Tridel urged the employer to apply a “Toronto Sun” test: if a person can read the Toronto Sun in the area, then it is adequately lit. Tridel’s witnesses testified that the basement was at least that well lit. Tridel also produced photographs which revealed the location of some lights in the basement. The inspector simply stated that in his view, the area in which the workers were present was not adequately lit.
The Board is not in a very good position to determine this issue based on the limited evidence presented at the hearing. Neither party introduced technical evidence (light meter readings) of the amount of light in the basement. The photographs are quite unhelpful because they do not show all of the lights in the basement or the areas where workers were working, and it is not clear whether the photographs could adequately represent the amount of light in the area in any event. I note, however, for what it was worth, that in the photographs the basement appears quite dark.
Since the appellant has the burden of proof in these cases, I must dismiss the appeal. However, I have little confidence about whether the Order was properly made or not. If the Ministry expects to enforce such orders in the future, it ought to make light meter readings and provide evidence about the appropriate level of light.
Conclusion
In final argument, Tridel urged the Board to find that the Orders made against the company involved at most technical breaches of the Act and its Regulations, which did not involve real concerns about health and safety. I do not agree. In my view, there are few, if any, breaches of the Regulations which might be said to be “technical”. The Regulations to the Act are, by their very nature, specific and technical. There is a reason for that: to ensure that companies are specifically told exactly what they must do to meet the minimum requirements of a workplace which is protective of the health and safety of workers.
On one point, at least, I do agree with Tridel. It was obvious at the hearing into these matters, and is apparent from the fact that these appeals ever got to hearing, that there is a severe conflict between these two parties that inhibits the health and safety system as it applies to Tridel and may negatively impact on the health and safety of workers. I am unable to determine who is responsible for this state of affairs. However, I urge the parties in the sharpest terms to get past these differences and create a more positive, constructive relationship.
“Brian McLean”
for the Board