3393-99-HS Bulk Systems (Ontario) Ltd., Applicant v. Transportation Communication Union and Ministry of Labour, Responding Parties.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; March 14, 2000
This is an application filed with the Board for an order suspending an order made by an inspector in accordance with section 61(7) of the Occupational Health and Safety Act (the “Act”) R.S.O. 1990, c. 0.1, as amended.
The order was issued on January 20, 2000 and reads as follows:
Pursuant to Ontario Regulation 851/90 Section 85 the employer shall ensure that all workers/truck drivers exposed to the hazard of falling more than 3 metres wear a full body harness system.
And further that:
Pursuant to the Occupational Health and Safety Act where an inspector finds a contravention of the Act or Regs [sic] may order that any place equipment thing or process not be used until an order is complied with. All workers shall not go up on top of the trailers until order #1 has been complied with.
- The factors to be considered when assessing whether a suspension order is appropriate are described in the decision of Adjudicator Herman in General Motors of Canada Limited (Board File No. 3666-96-HS, June 2, 1997). These three factors have generally been considered by adjudicators when determining whether a suspension of an order is warranted in the circumstances:
(a) whether the suspension of the order would endanger worker safety;
(b) the prejudice to the parties if the order is or is not suspended; and,
(c) whether there is a strong prima facie case for a successful appeal of the order.
The applicant seeks a suspension of the order on the basis that the fall arrest system used by it meets the requirements of the applicable regulation calling for a “serviceable safety belt”. The applicant asserts that its drivers must on occasion climb on top of the trailer to level the load being carried (wood chips and other products) to permit it to be tarped. The applicant further states that the use of a “serviceable safety belt” as mandated by the regulation does not require a full body harness as is required by the order. The applicant also states that prior to issuing the order the inspector did not examine, review or discuss the merits of the applicant’s system with the applicant and further that system has been approved for use in British Columbia and by the Transport Communications Union.
The position put forth by the Ministry of Labour is that when the order was issued there was no fall arrest system in place and not as the applicant asserts whether its fall arrest system meets the regulatory requirements. If the order were suspended the result would be that no fall arrest system would be required in these circumstances. If the order were suspended on condition that the applicant’s fall arrest system continue to be used, that system would be one which has not, to date, been determined to meet the regulatory requirements. In short, the Ministry’s position is not at this point that the system proposed by the applicant does not meet the requirements but rather that it is not yet satisfied based on the information provided by the applicant that the system proposed is acceptable.
It is not disputed by the applicant that on the day the order was issued its driver was not wearing any fall arrest system. In that regard whether or not the system meets the regulatory requirements is not the issue in this appeal.
In my view and having considered the submissions of the parties there is a significant danger in suspending the officer’s order and I am not prepared to do so. The danger of a worker who may not be adequately protected from a fall from the top of a trailer is sufficient reason for my decision not to suspend the order of the inspector pending the outcome of the appeal.
8 Having regard to the above, I decline to suspend order numbers 1 and 2 in the inspector’s field visit number 940945 dated January 20, 2000.
“Marilyn Silverman”
for the Board