Thorold Professional Fire Fighters’ Association v. Corporation of the City of Thorold, 2000 CanLII 13596

Thorold Professional Fire Fighters’ Association v. Corporation of the City of Thorold

File No.: 1240-99-HS Date: September 22, 2000

Between: Thorold Professional Fire Fighters’ Association, Appellant v. Corporation of the City of Thorold, Doug Hart (Inspector) and Ministry of Labour, Responding Parties.

Before: Harry Freedman, Vice-Chair.

Appearances: Howard Goldblatt, Lisa Triano, Rick Honsberger, Bruce Carpenter and Jim Simmons for the appellant; Stephen C. Raymond, B. Casselman and John MacLeod for the Corporation of the City of Thorold; Bridget Lynett and Doug Hart for the Ministry of Labour and Doug Hart.

DECISION OF THE BOARD

1This is an appeal under section 61 of the Occupational Health and Safety Act, R. S. O. 1990, c. O. 1, as amended (the “Act”) of the decision made by Inspector Doug Hart in F.V. No. 883623 dated July 20, 1999. The Board by decision dated January 27, 2000 in this matter and in an associated proceeding in Board File No. 0570-99-HS described the issue under appeal in this proceeding as follows:

The issue before me is whether the decision of the inspector, in which he says:

“Writer was provided with the S.O.P.’s developed by the Thorold Fire Service in response to orders issued by the writer. The writer is satisfied that the corporation has achieved compliance with the orders issued.”

is correct. The determination of that issue, in my opinion, requires an assessment of the actions taken by the City to determine whether there was, in fact, compliance with the inspector’s earlier order and more generally, whether there was compliance with the Act.

Counsel for the appellant moved to have the Board issue an interim order requiring the Corporation of the City of Thorold (the “City”) to either assign full-time firefighters in District 1 the way it had assigned them between May 12 and July 19, 1999 or to instruct firefighters that they are not required to respond to calls in any district until there are at least two firefighters on the responding vehicle. As the matter could not be dealt with at the hearing, the parties filed detailed written submissions with respect to the appellant’s request for an interim order in accordance with the schedule set out in the Board’s January 27, 2000 decision.

2The responding parties submit that the appellant’s request is a disguised request for reconsideration of the Board’s (differently constituted) earlier decision dated November 29, 1999 denying the appellant’s request that the Board suspend the operation of the Inspector’s order under appeal in this matter and that it should be dismissed as the appellant had not established any basis for reconsideration. Alternatively, counsel for the City submits that the Board does not have the jurisdiction to grant an interim order at the stage of the proceeding when the request was made. Finally, the responding parties submit that there is no proper basis for granting the interim relief sought by the appellant applying the criteria that should be used in determining whether interim relief is appropriate.

3The appeal in this matter arose from the Inspector’s decision of July 20, 1999 in F.V. No. 883623 in which he found that the City had complied with an earlier order he had made in F.V. No. 883319 on May 12, 1999. The Inspector’s order of May 12, 1999 directed the City to ensure that an emergency response vehicle responds to an emergency scene with at least two trained personnel and required the City to write a standard operating procedure (“S.O.P.”) incorporating the Inspector’s directive and provide instruction to firefighters to comply with that directive. The City filed an appeal of the May 12^th order. Subsequently, the Inspector issued an order on May 19, 1999 in F.V. No. 883317 in which he directed the City to ensure that, until his May 12, 1999 order is complied with, two firefighters respond to an emergency situation. Neither the City nor the appellant filed an appeal of the Inspector’s May 19, 1999 order. Subsequently, as the Board noted in its January 27, 2000 decision, the City withdrew its appeal of the May 12, 1999 order following the Inspector’s decision dated July 20, 1999, which is the subject of this appeal.

4The appellant had requested, by letter dated October 19, 1999, a suspension of the order under appeal. That request was ultimately dismissed by the Board (differently constituted) by decision dated November 29, 1999. The Board, in dismissing the application for suspension of the order based its decision, in large part, on what it considered a significant delay (some three months) between the date of the order under appeal and the date the appellant sought suspension of it. The Board at paragraph 12 of that November 29, 1999 decision stated:

Having regard to the Association’s three month delay in seeking a suspension, it is apparent that the Association did not believe that the continued existence of the July Order would endanger worker safety or cause the Association prejudice.

The City submits that the request for an interim order is, in fact, a request for reconsideration of that Board decision, and on that basis, it should be dismissed. Counsel for the appellant points out that the suspension of the order under appeal would not sufficiently ensure worker safety.

5The July 20, 1999 order determined that the City had complied with the Inspector’s earlier order of May 12, 1999 as clarified or amended by his May 19, 1999 order. Thus, it is difficult to understand what would be achieved by simply suspending the operation of that July 20, 1999 order unless some other directions were obtained requiring the City to act in a particular way. The appellant is seeking interim relief requiring the City to change how firefighters are scheduled or dispatched pending the hearing and disposition of the appeal in this matter. That is, in my view, substantially different from an application to suspend the Inspector’s order finding that the City had complied with his earlier order even though the interim order sought would, if granted, have the effect of setting aside the Inspector’s July order pending the determination of the appeal. Therefore, I am satisfied that the request for an interim order is not tantamount to an application to suspend an order pending an appeal and therefore is not a request for reconsideration dismissing the application to suspend the operation of the Inspector’s July 20 decision.

6The City also submits that the Board does not have jurisdiction to grant an interim order under section 61(3.4) of the Act on the basis that an interim order can only be made after consulting with the parties and that once the Board had conducted a hearing, as it has in this proceeding, the consultation process (and the power to make an interim order) is no longer available. Counsel relied on section 61(3.3) of the Act and the Board’s decisions in Waterloo Regional Police Service, decision dated February 15, 1999, unreported, Board File No. 3011-98-HS, [1999] O.O.H.S.A.D. No. 148 and Toronto Transit Commission, decision dated January 20, 1999, unreported, Board File Nos. 2309-97-HS; 2750-97-HS and 3562-97-HS, [1999] O.O.H.S.A.D.

7Sections 61(3.3.) and 61(3.4) of the Act provide:

(3.3) Subject to the rules made under subsection (3.8), the Board shall hold a hearing to consider the appeal unless the Board makes an order under subsection (3.4).

(3.4) The Board may make any interim or final order it considers appropriate after consulting with the parties.

In Waterloo Regional Police Service, supra, the Board, in dealing with a request for an expedited hearing with respect to an appeal of an inspector’s order to produce certain documents, directed the parties to exchange lists of documents and then stated at paragraph 8 of that decision:

Once those lists of documents are exchanged, the Board will determine whether to schedule a hearing under section 61(3.3) of the OHSA or a consultation under section 61(3.4) of the OHSA or direct the parties to file written submissions on the issue of solicitor/client privilege raised by the applicant.

In Toronto Transit Commission, supra, the Board noted that a pre-hearing consultation with a Vice-Chair had taken place at which the responding party had submitted that the appeal under section 61 of the Act be dismissed for failing to disclose a prima facie case. When the matter subsequently came before the Board for hearing before a different Vice-Chair, the responding party again submitted that the appeal should be dismissed for failing to disclose a prima facie case. The applicant contended that that issue had already been determined and therefore should not be argued again before the Board at the hearing of the appeal. The Board, in the course of dismissing the motion to dismiss the appeal for failing to disclose a prima facie case on the ground that the Board had already dismissed that motion earlier by listing the matter for hearing after the pre-hearing consultation, wrote at paragraph 9:

I am satisfied that the Board, pursuant to section 61(3.4) of the Act, had the jurisdiction to issue a decision dismissing these appeals at the pre-hearing conference since such a pre-hearing conference would have constituted a consultation within the meaning of section 61(3.4) of the Act. It was clear…that the Board had directed that these matters be listed for hearing following that pre-hearing conference and it was also clear…that representations had been made to the Board at that pre-hearing conference to the effect that these appeals should be dismissed….

8The City submits that the Board has viewed the consultation process as a preliminary step that takes place before a hearing is scheduled. It also submits that once the Board determines that a hearing is to take place under section 61(3.3), the Board is no longer able to engage in the consultation process or issue any orders under section 61(3.4) because the Board, if it determines that a hearing is necessary, can no longer issue an interim or final order after a consultation under 61(3.4) since the power to hold a hearing and the power to issue interim orders after a consultation are not exercisable together. The City argues that the Board in Waterloo Regional Police Service, supra indicated that those two powers were alternatives and that the use of the word “unless” in section 61(3.3) also suggested that once a hearing takes place the Board can no longer exercise the power to make an interim order.

9The appellant also relies on section 16.1 of the Statutory Powers Procedure Act, R. S. O. 1990, c. S. 22 (the “SPPA”) as an alternative basis for the Board’s authority to issue an interim order. Section 16.1 of the SPPA provides:

(1) A tribunal may make interim decisions and orders.

(2) A tribunal may impose conditions on an interim decision or order.

(3) An interim decision or order need not be accompanied by reasons.

The SPPA applies to the Board’s proceedings under the Act by reason of section 3 of the SPPA. Furthermore, section 32 of the SPPA, which provides:

Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith.

makes it clear that unless the Act expressly provides that the SPPA does not apply, then the provisions of the SPPA, including the power to grant interim relief, applies to the Board in proceedings under the Act. Section 61(3.5) of the Act provides:

The Statutory Powers Procedure Act does not apply with respect to a consultation the Board makes under subsection (3.4).

While the SPPA does not apply with respect to a consultation conducted by the Board under section 61(3.4) of the Act, it does apply to the Board’s proceedings under section 61(3.3).

10The City contends that the Legislature, by enacting section 61(3.4) of the Act and expressly granting the Board power to make an interim order, intended that the Board would not have that power once the matter proceeded to a hearing under section 61(3.3). The City argues that the express provision in section 61(3.5) of the Act making the SPPA inapplicable to a consultation under section 61(3.4) was intended to ensure that the summary and expeditious consultation procedure would not be encumbered by the procedural formalities required by the SPPA. It also submits that the Act should not be interpreted as granting interim relief power to the Board by resort to section 16.1 of the SPPA due to the omission of any reference to the SPPA in section 61(3.3) and the express reference to it in section 61(3.5)

11It appears to me that the essence of the City’s submission is that once the Board has held a hearing under section 61(3.3) of the Act, it can no longer rely on the interim relief power (and presumably cannot engage in the consultation process) permitted by section 61(3.4). Section 61(3.3) requires the Board to hold a hearing of an appeal unless it makes an order under section 61(3.4). The obligation to hold a hearing is also subject to the Board’s Rules. It can only make an order under section 61(3.4) after consulting with the parties.

12Appendix C of the Board’s Rules applies to appeals under section 61 of the Act and are therefore the rules to which section 61(3.3) refers. Sections 9 and 10 of Appendix C provide:

9. In order to expedite proceedings under section 61 of the OHSA, the Board may, on such terms as it considers advisable, consult with the parties, conduct a pre-hearing conference, issue any practice direction, shorten or lengthen any time period, change any filing or delivery requirement, schedule a hearing, if any, on short notice, or cancel such hearing, make or cause to be made such examination of records or inquiries as it considers necessary in the circumstances, or limit the parties' opportunities to present their evidence or to make their submissions.

10. Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition, the Board may decide any matter under section 61 of the OHSA without an oral hearing.

Appendix C of the Board’s Rules expressly permits the Board to determine an appeal under section 61 of the Act based on the material before it without convening an oral hearing. Reading sections 9 and 10 of Appendix C together with sections 61(3.3) and 61(3.4) of the Act suggests that the Board can determine an appeal without an oral hearing and may consult with the parties at any time in the course of the proceeding. Section 9 of Appendix C also gives the Board a very broad discretion to determine how it will best deal with an appeal. Although the Board in Waterloo Regional Police Service, supra seemed to indicate that the hearing and consultation processes were alternative ways of proceeding, that issue was not before the Board for determination in that case. There is, in my view, nothing in section 61(3.3) which would preclude the Board from convening a hearing after issuing a decision under section 61(3.4). To the contrary, section 61(3.4) allows the Board to make “any interim or final order” while section 61(3.3) merely provides that the obligation to hold a hearing is subject to the Board’s Rules and subject to the Board making an order under section 61(3.4). There is nothing in those provisions which would preclude the Board from convening a hearing after making an order under section 61(3.4), nor is there anything in those provisions which would prevent the Board from engaging in a consultation with the parties after a hearing had commenced. There may well be circumstances where an interim order might appropriate in the course of a hearing. To adopt the City’s submission would prevent the Board from exercising that power once a hearing was convened. There is no statutory reason to adopt that restrictive interpretation. Furthermore, such a restrictive view of the Board’s authority would impede the flexible approach to appeals under the Act that section 9 of Appendix C of the Board’s Rules and section 61(3.4) of the Act allow the Board to use.

13I am satisfied that despite the Board having convened a hearing of this appeal, the Board continues to have the power under section 61(3.4) of the Act to issue an interim order. In my view, the hearing process under section 61(3.3) and the consultation process under section 61(3.4) which contains the express power to issue interim orders are not mutually exclusive. The obligation to hold a hearing imposed by section 61(3.3) is subject to the Board’s Rules and ceases if the Board makes an order under section 61(3.4). While making an order under section 61(3.4) may end the obligation to hold a hearing, making an order under that section does not in my view preclude the Board from doing so. Thus, the City’s preliminary objection to the Board’s jurisdiction to grant an interim order in this proceeding is dismissed.

14The interim order sought by the appellant, that is to require the City to either assign full-time firefighters in District 1 the way it had assigned them between May 12 and July 19, 1999 or to instruct firefighters that they are not required to respond to calls in any district until there are at least two firefighters on the responding vehicle, seeks to maintain the scheduling of firefighters adopted by the City until the Inspector issued the order under appeal on July 20, 1999. When the City received the Inspector’s order on July 20, 1999, it ceased scheduling two full-time firefighters to work at all times; rather on occasion only one full-time firefighter was scheduled for work. It is having only one full-time firefighter immediately available to respond to an emergency call that gives rise to the request for an interim order.

15In order to understand the nature of the interim order requested, a brief description of how the City organizes fire protection is necessary. The City’s fire department is composed of full-time firefighters and volunteer firefighters. The City is divided into five fire protection districts, with the full-time firefighters assigned to district one from where approximately 60% of the fire calls emanate. The other four districts are serviced by the volunteer firefighters. In the event of an emergency call in district one, the full-time firefighters are dispatched. There are generally two full-time firefighters scheduled for a shift, but occasionally, there are times when a full-time firefighter is not able to work and as a result only one full-time firefighter is on duty in district one. The appellant suggested that this situation arose at least 15% of the time. Two full-time firefighters are generally on duty in district one for approximately 85% of all shifts. If there is a fire call in district one, the two full-time firefighters respond to the call on the pumper truck. Volunteer firefighters report to the station to staff the other fire department vehicles and respond to the fire call. If there is a fire call in district one and only one full-time firefighter is on duty, that firefighter will await the arrival of a suitable volunteer to staff the pumper and then respond to the fire call. The pumper does not leave the station to respond to a fire call in district one without a minimum of two firefighters on it. When there is a fire call in any of the other districts, the volunteer firefighters assigned to that district report to the station in that district to obtain the appropriate equipment and vehicles and respond to the call. The full-time firefighters on duty in district one also respond to fire calls in the other districts; if two full-time firefighters are on duty, they respond with the pumper truck but if there is only one full-time firefighter on duty, that firefighter responds to a fire call in the other districts by driving the rescue van to the call.

16It is the last circumstance described above that gives rise to the dispute between the appellant and the City. The appellant contends that two full-time firefighters must be on duty at all times to ensure that at least two firefighters respond to a fire call. The appellant suggests that when only one full-time firefighter is on duty, that firefighter will respond to a fire call outside of district one alone in the rescue van and might well arrive at that call before any volunteer firefighters have arrived with the result that the one full-time firefighter is in an emergency situation alone, a circumstance which places that firefighter at considerable risk.

17The City, it appears, does not contest that having one firefighter respond to a fire call is unacceptable. Indeed, it acknowledges in its submissions that “the City always responds to an emergency situation by dispatching at least two firefighters and frequently it is many, many more.” When only one full-time firefighter is scheduled for duty in district one, it is possible for that firefighter to be alone at the fire (or other emergency) location for some period of time, even though volunteer firefighters have been dispatched. The appellant submits that possibility was eliminated between the Inspector issuing the order dated May 12, 1999 and his order of July 19, 1999 because the City had scheduled two full-time firefighters to be on duty in district one at all times. The City changed its schedule during that period in order to comply with the Inspector’s May 12, 1999 order as clarified or modified by his subsequent May 19, 1999 order until it had developed standard operating procedures (S.O.P’s) to ensure compliance with the May 12 order. The Inspector determined that the S.O.P’s issued by the City were sufficient in that they addressed the concerns which gave rise to the original order.

18This is the first time that the Board has been asked to issue an interim order under the Act, although the Board has had a good deal of experience dealing with requests for interim orders under both the Bill 40 (the predecessor to the Labour Relations Act, 1995, S. O. 1995, c. 1 (the “LRA”) as well as under the LRA. Counsel for the appellant submits that the tests applied by the Board for deciding whether to issue an interim order under the LRA are applicable to applications for interim relief under the Act. Counsel argues that the broad language found in section 61(3.4) was added to the Act well after the interim order power under the LRA was limited to procedural matters. Thus, it is clear that the Board has the power under the Act to issue substantive as well as procedural interim orders. Counsel for the City submits that the Board’s approach to interim orders under the LRA is not relevant to the determination the Board must make under the Act. The Board’s approach to interim orders under the LRA arose in a context where unfair labour practices were alleged and the Board’s intervention was necessary to counteract the chilling effect that such violations of the LRA would have on organizing or bargaining so as to make the ultimate remedy ineffective if no interim order were granted. Furthermore and perhaps more importantly, counsel for the City pointed out that the dispute between the City and the appellant has already been reviewed by a third party (the Inspector) and that the request for an interim order arises in an appeal from the Inspector’s decision.

19Although request made by the appellant for interim relief, as noted earlier, is different than its earlier request to suspend the operation of the Inspector’s order because it seeks to have the Board make positive directions, the result of the request, if granted, would, in effect, have the Board set aside the inspector’s July 20, 1999 decision pending the disposition of the appeal of that order. In my opinion, just as an inspector’s order is entitled to a “certain degree of deference” when considering a request to suspend that order (see Regional Municipality of Hamiliton-Wentworth, [1998] OLRB Rep. July/Aug. 709 at paragraph 6), an inspector’s decision that is the subject of an appeal in respect of which an interim order is sought is also entitled, in my view, to that same type of deference. In Regional Municipality of Hamiliton-Wentworth the Board, in dismissing an application to suspend an inspector’s order pending the appeal, commented at paragraph 6: “In the absence of some persuasive reason to interfere with that order pending the hearing of the appeal on the merits, the original order ought not to be suspended.” A similar approach to an inspector’s decision was also adopted by the Board in R. J. Dungey and Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at 87:

…although the inspector’s order is under appeal there is, in my opinion, a rebuttable presumption that an inspector’s order is authorized by the OHSA and is correct. An inspector has the statutory duty to administer and enforce the OHSA. An inspector’s decision and order are part of that statutory administration and enforcement framework and as such should not be suspended prior to the hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so.

20The appellant’s concerns about the Inspector’s July 20, 1999 decision is understandable. After Inspector Hart issued his first decision dated May 12, 1999, which the City appealed, the City began scheduling two full-time firefighters and continued that same scheduling until they received the Inspector’s July 20, 1999 decision despite having also earlier received the Inspector’s May 19, 1999 decision in which the Inspector directed the City to ensure that two firefighters respond to an emergency situation. The difference between the parties appears to be based on how the City ensures that at least two firefighters will respond to an emergency situation. The appellant contends that until the appeal on its merits is decided, that can only be done by having two full-time firefighters scheduled at all times or by directing that the full-time firefighter on duty in District 1 is not required to respond to calls in any district until there are at least two firefighters on the responding vehicle. The City contends that no health and safety issue arises from the scheduling of firefighters or how they get to the scene of the emergency; rather the health and safety focus should be on what takes place at the scene of the emergency.

21It appears to me that the Inspector’s decisions were directed at ensuring that a firefighter not be placed in jeopardy at the scene of the emergency by having to deal with the situation alone. The Inspector’s May 19^th decision directed that at least two firefighters respond. He did not require that they be on the same vehicle, although the City did not revert to scheduling full-time firefighters the way it had prior to May 12, 1999 until the Inspector reviewed and approved the S.O.P.’s the City had developed. The S.O.P dealing with a situation where one person arrives on the scene states:

One Person Crew

Although rare, a single person may arrive alone at the scene of an emergency. If this occurs, that person will:

• Initiate Command

• Establish a command post

• Establish Emergency Communications

• Size up

• NOTE—No aggressive interior fire suppression or rescue activities are permitted

Each S.O.P., including the one person crew S.O.P., also contains the following statement:

This directive is not expected to substitute for good judgment and experience of a Fire Officer under unusual conditions.

The appellant contends that there remains a significant risk to health and safety because a firefighter arriving at an emergency scene alone may act alone, despite the directives set out in the One Person Crew S.O.P., and thereby place himself or herself at risk. Doing so might not be a violation of the S.O.P., the appellant argues, because the officer using “good judgment and experience…under unusual conditions” might well decide to act alone to undertake, for example, a rescue activity. The City submits that firefighters must comply with the S.O.P.’s governing the fire department including not acting alone.

22Before the Board issues an interim order that would, in effect, countermand the decision of an inspector, I am of the opinion that the party seeking interim relief must provide compelling grounds or a persuasive reason for the Board to issue an interim order. That would, in my view, require that party to demonstrate that the Inspector’s decision was clearly wrong or that an interim order is necessary to ensure that the health and safety of workers is not jeopardized by the absence of an interim order. While in this case there may well be some risk that a firefighter arriving at a scene alone might attempt a rescue before a second firefighter arrived, it seems to me that the obligation on a firefighter to use good judgment and experience under unusual conditions includes determining whether it is prudent to act alone. The S.O.P affecting a one person crew envisions that although two or more firefighters will be dispatched to respond to an emergency, the firefighters may not necessarily arrive at the scene of the emergency at the same time. The health and safety concern affecting firefighters which the Inspector dealt with in his May 12, 1999 order as clarified or amended by his May 19, 1999 order was addressed by that S.O.P. as it clearly provides that a single firefighter not engage in activities that would put that firefighter in jeopardy. The S.O.P.’s that deal with crews of two or more firefighters outline the kinds of actions that may be taken when two or more firefighters are at the scene of an emergency that go well beyond what a single firefighter may do. In my view, issuing a clear instruction to firefighters that a firefighter who is alone at the scene of an emergency is not obliged to engage in interior fire suppression or rescue does appear to address the health and safety risks associated with only one firefighter being at the scene of an emergency. The appellant did not suggest that initiating command, establishing a command post, establishing emergency communications and sizing up the situation put a single firefighter’s health and safety at risk.

23While there is merit to the appellant’s argument concerning the real possibility that a firefighter would not contravene the one person crew S.O.P. by acting alone to engage in a rescue because doing so was a matter of good judgment and that the only real and practical way to ensure that would not happen is to make certain that two firefighters arrive at the scene of an emergency at the same time, either by having two firefighters scheduled for work at all times or by requiring that the response vehicle not leave the station until at least two firefighters are on the vehicle, I am not persuaded that the Inspector’s decision finding that the S.O.P.’s issued by the City complied with his order of May 12, 1999 as clarified or amended by his order of May 19, 1999 was either clearly wrong or that the health and safety of the City’s firefighters (both full-time and volunteer) would be jeopardized if the interim order is not issued. The one person crew S.O.P. clearly provides that a firefighter acting alone should not engage in activity that places him or her at undue risk. That is sufficient, in my view, to alleviate the health and safety risks the appellant seeks to have the interim order deal with. The appellant has not satisfied me that the interim order it seeks is warranted. Therefore, the application for an interim order is dismissed.

24The appeal of the Inspector’s decision is currently scheduled for continuation of hearing on October 2, 3, 11, 12 and 17, 2000. The parties advised the Board by letter dated September 6, 2000 that they had agreed to adjourn the hearing days of October 2 and October 11, 2000. Therefore, the hearing of this appeal on October 2 and 11, 2000 is adjourned. The hearing will take place as previously scheduled on October 3, 12 and 17, 2000 before this panel of the Board.

“Harry Freedman”

for the Board