3473-99-HS Dynatec Corporation, Applicant v. Bob Lemieux and Ministry of Labour, Responding Parties.
3528-99-HS Dynatec Corporation, Applicant v. Bob Lemieux and Ministry of Labour, Responding Parties.
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; April 12, 2000
1Board File No. 3473-99-HS is an appeal pursuant to section 61(1) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1, as amended (the "Act") filed by the applicant, Dynatec Corporation, of Order No. 1 made by Bob Bertrand under the Act on February 1, 2000 in Field Visit No. 940961. Board File No. 3528-99-HS is an application filed with the Board for an order to suspend this order in accordance with section 61(7) of the Act pending the applicant's appeal and the Board's determination of its appeal in Board File No. 3473-99-HS.
2The "order" which the applicant seeks to suspend is reproduced below:
In accordance with section 11(1)(ii) of the Regulation for Mines and Mining Plants, employers in the following types of mines and mining plants shall establish and maintain the following training programs developed jointly by labour and management in the mining industry and the Ministry of Skills Development and approved by the Director.
- Hard rock underground mines,
ii. Specialty Modules Underground Hard Rock Mining
(Program # P770010),
Construction supervisor has not completed the specialty module S280 Construction Services
Comply forthwith.
3Section 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]
4The applicant contends that the refusal to suspend the order will have a negative effect on it since the refusal to do so could "... lead to a misinterpretation in section 11 of the Regulations" as to the meaning of "appropriate" training to be provided to a worker referred to in that section. The applicant further argues that the refusal to suspend this order will have a negative effect because it will, in effect, set a precedent that an Inspector can order a supervisor to be trained in the particular Specialty Module he is supervising at any given time, rather than simply being trained in the Common Core for front line supervisors.
5In the response to the application for suspension of inspector's order, counsel for the Ministry of Labour and the Inspector, Mr. Robert Bertrand, notes that Specialty Module S280 Construction Services consists of two modules: U0085 which specifically deals with underground construction and U0087 which addresses shaft sinking. Counsel notes that the Ministry consents to the suspension of the order in so far as it relates to the Specialty Module for Shaft Sinking No. U0087, but opposes the suspension of the order in so far as it relates to the Specialty Module U0085 dealing with underground construction.
6The 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 case for a successful appeal of the order.
(see R.J. Dungey & Sons Ltd., supra, at para. 17, and the decisions cited there in)
7In addition to considering these factors above, 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.
8Based on the materials filed by the applicant, the Board is not persuaded that the applicant would be prejudiced if the order is not suspended. The Board notes that the applicant's stated concern regarding the "precedent" that would be set in terms of the inspector's interpretation of "appropriate" training if the order is not suspended is speculative at best and could, in event, be reversed if the applicant's appeal of the order is ultimately successful. The Board further notes that the applicant has not suggested that compliance with this order would be particularly onerous and that the Ministry has indicated that completion of Module No. U0085 can potentially be completed in one day. In all of the circumstances, the Board finds that the applicant has failed to demonstrate significant prejudice, which would compel the Board to suspend the operation of the orders in light of the possibility of endangering worker's safety. Finally, the Board is not satisfied that the applicant is more likely than not to be successful in its appeal.
9The Board therefore orders the suspension of the order only in so far as it relates to the Specialty Module for Shaft Sinking No. U0087, in view of the Ministry's consent. The Board, however, otherwise dismisses this application for suspension of the order.
10This matter is referred to the Registrar.
"Caroline Rowan"
for the Board