0838-00-HS Kathy Adams Izzard, Applicant v. General Motors of Canada Limited, and Ministry of Labour, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; December 1, 2000
This is an appeal of an inspector's order filed pursuant to section 61(1) of the Occupational Health and Safety Act, R.S.O. 1990 ch. O.1 ("the Act"). In its response, the responding party employer, General Motors of Canada Limited (“GM”) asked the Board to dismiss this application without a hearing on three different bases. By a decision dated November 17, 2000 the Board directed the applicant to respond to certain issues raised in the response. By the deadline set out in that decision, the applicant had filed nothing with the Board. The Board will therefore, pursuant to Rule 10 consider this application on the basis of the material in the file. As will be seen, I have not dismissed this application. However, the materials in this file, and the failure of the applicant to respond as directed, do cause me to make certain orders about the issues to be dealt with at the hearing.
Some context is necessary. On January 31, 2000 the applicant was injured. She was working in the paint shop. She was injured when a truck hood fell and struck her neck. The cause of this accident was apparently a defective strut. The applicant states that she had advised her supervisors of this potential hazard on January 28, 2000. GM denies this is the case.
Although the sequence of events is not clear, a report about this situation was made to the Joint Health and Safety Committee (“JHSC”) which performed an investigation. The JHSC made certain recommendations which GM states were complied with.
The applicant pursued certain grievances and other dispute resolution mechanisms in the work place. The result of these proceedings was apparently unsatisfactory to the applicant.
On May 28, 2000, the applicant requested that an inspector attend at the site and investigate her complaint. The inspector issued a report on May 30, 2000 which states in part:
“… the MOL requests that an in depth detail investigation be conducted as to how defective trunk lids are identified or any other defective parts, struts, etc. so as to prevent injury to the worker. This report to be completed and forwarded to MOL by 09 June 2000.”
GM did so and complied with the proposals made in that document.
- On June 28, the applicant filed this appeal. The relief sought is stated as follows:
“We are seeking charges that will hold the company and the supervisor responsible for the injury of a worker…to ensure their responsibilities under the Act are…[?]… carried out in the future to protect the health and safety of all workers”
- GM has asked the Board to dismiss the application on three grounds. These are, briefly, that the appeal is an attempt to get around the mandatory time limits in the Act, and should be deemed to be out of time; that the remedy requested is beyond the Board’s jurisdiction to grant; and that the application does not disclose a prima facie case. I shall deal with these in sequence.
Timeliness
- I decline to dismiss this application at this time, although the time lines described above may well influence the Board’s decision with respect to remedy, if any. GM has raised a real and serious concern about an employee utilising the Act to revive disputes over health and safety issues that have long ceased to be meaningful. However, as a matter of jurisdiction, I cannot dismiss it at this time. Even if the inspector had refused to issue the report on the grounds of delay (as well he might have done), the applicant would have had the right to appeal that decision. It may well be that the length of time that the applicant waited before contacting the Ministry may cause the Board to refuse to grant any relief at the end of the day. Because of the issue raised in the third objection, I will not decide that at this point.
Remedy requested
The remedy requested is quoted above. GM and the Ministry interpret this to mean that the applicant seeks to have charges laid or perhaps prosecuted under section 66 of the Act. This relief is not available under section 61. The Board has no jurisdiction to order that. If that is really what the applicant is seeking, then this application should be dismissed.
However, the Board is concerned about imposing excessively high standards of pleadings on individuals who are not lawyers and are not represented by lawyers. It may well be that the applicant is attempting to say that she believes that unsafe conditions still exist in the workplace and that she wants an order which would prevent the injury which had occurred to her from reoccurring. It may be that the applicant is unaware of the remedial jurisdiction of the Board, or does not understand that remedies available under section 61 are not punitive in nature. That is why the Board asked the applicant to clarify what relief she sought. The fact that she has failed to do anything at all in this regard makes it very tempting to dismiss the application on this ground alone. With considerable misgiving, I have decided not to do so. However, what it is the applicant is asking the Board to do will be the first item to be addressed on December 12, 2000.
No Prima Facie Case
There is not sufficient material in the Board’s file to permit me to dismiss this application for failing to disclose a prima facie case. Since two investigations, one by the JHSC and one by the inspector, produced recommendations (although what they are, is not revealed in the file) the Board can only conclude that the original situation was one which required some remedial action. Whether or not GM had fulfilled its obligation to “take every precaution reasonable in the circumstances for the protection of the worker” (section 25(2)(h)) cannot be decided on the contents of the file. More importantly, the Board cannot determine whether the order of the inspector and the report filed with the Ministry on June 9, 2000 were adequate to eliminate, to the extent reasonably possible, hazards from the workplace.
However, just as the Board is concerned that the Act not be administered in a way to make access to the Act impossible for non-lawyers, it is also concerned that the self-regulating mechanisms of the Act are not undermined by the Board’s process. There was a JHSC investigation which produced all of the recommendations that the committee felt were necessary to make the workplace safe. It is not contradicted that these recommendations were followed. Although the inspector did call for further study of the matter, some deference is due to the JHSC. It is that body on which the Act places considerable responsibility for administering disputes or potential disputes about the application of the Act. The JHSC is, after all chosen by employees, or their bargaining agent, and the employer and is closer to and more familiar with the workplace than the Board will ever be.
The Board will not dismiss this application on the bases raised by the responding party in its response. However, the Board does find it appropriate to focus the issues in this application. GM is directed to deliver to the other parties and to the Board the report of the JHSC and the results of the review produced on June 9, 2000. On December 12, 2000 the Board will (after clarifying the relief sought by the applicant) require the applicant to demonstrate why these measures are not sufficient to rectify all potential hazards in the workplace relating to the problem she encountered in January 2000. The onus will be on her. While the Board does not operate in a fashion that requires parties to be represented by a lawyer, the hearing is a legal proceeding. The Board will not be in a position to assist the applicant and she will have to respond to both the legal and evidentiary issues which arise.
I will not be the Vice-Chair at the hearing of this matter. Given the applicant’s refusal to respond to the Board’s direction of November 17, 2000, the panel hearing this matter may well be disposed to permit the responding party to make a motion for non-suit without being put to its election as to whether to call evidence. The panel hearing the matter may also be disposed to grant an adjournment to GM after the applicant is finished calling her evidence (if one is sought). That is a matter for the hearing panel to decide.
“David A. McKee”
for the Board