Ontario Labour Relations Board
0276-00-HS Clemmer Technologies Inc., Applicant v. United Steelworkers of America, Local 3534-01, Mike Hutt, Inspector and Ministry of Labour, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; May 16, 2000
This is an application under section 61 (7) the Occupational Health and Safety Act, R. S. O. 1990, c. O. 1, as amended (the “Act”) for the suspension of the operation of orders issued by Inspector Mike Hutt pending the disposition of the applicant’s appeals of those orders. The applicant filed an appeal on March 3, 2000 under section 61 of the Act of the order made by Inspector Hutt in F.V. 845655 dated February 4, 2000 which is pending before the Board in Board File No. 3568-99-HS. The applicant filed a second appeal on April 25, 2000 of the order made by Inspector Hutt in F.V. 845670 dated April 14, 2000 which is pending before the Board in Board File No. 0275-00-HS.
The applicant’s material indicates that its appeals dated March 3, 2000 and April 25, 2000 both relate to items 5, 7, 8 and 10 of Inspector Hutt’s February 4, 2000 order in F.V. 845655. Inspector Hutt, in his April 14, 2000 order in F.V. 845670 required the applicant to comply with previous order he had made in February. The orders under appeal require the applicant to put a wall with a two hour fire rating around a spray paint area; install automatic sprinkler systems in certain areas; use a fume exhaust system that does not recirculate air and ensure that electrical equipment in enclosed areas with paint fumes meet appropriate electrical safety code standards. The applicant did not seek to suspend the operation of the order made in F.V. 845655, but does apply to suspend the operation of the subsequent order directing compliance with the Inspector’s earlier order.
The Ministry of Labour and the Inspector oppose the applicant’s suspension request. No submissions have been received from the other responding parties. The applicant submits that there is no risk to the safety of employees should the order requiring compliance be suspended because the Inspector did not issue a stop work order immediately after his inspection that gave rise to his orders. The applicant also submitted that the inspection did not result from any injury but rather was part of a general inspection undertaken by the inspector and therefore the safety and health of employees are not at risk.
The Inspector and the Ministry of Labour point out that the current configuration of the applicant’s workplace exposes workers to the hazard of inflammable liquids and fumes being ignited. They suggest that the Inspector’s orders address at least one potential source of ignition. They also submitted that while the applicant suggests there is no safety risk to workers because the Inspector’s orders were not warranted the applicant has failed to demonstrate how the workers’ safety might be maintained if the operation of the orders were suspended.
They also point out that although the first order was issued in February, the applicant seeks to delay compliance with item 8 of the order to September 30, 2000 and item 10 of the order to August 1, 2000. They submit that such delay in complying with the Inspector’s order is unwarranted and suggest that the applicant could undertake measures to achieve compliance much more quickly.
The applicant has the burden of establishing that suspending the operation of the Inspector’s order would not endanger a worker. It is not, in my opinion, sufficient for an applicant to submit that worker safety would not be endangered because an inspector did not immediately issue a stop work order. Obviously, there is a range of risk and it is reasonable to infer that Inspector Hutt, in assessing the risk in this case, determined that a stop work order was not justified, but that compliance with his orders within a reasonable period of time was necessary to ensure the safety of workers. Furthermore, merely because there had not been an industrial accident in the workplace that caused the Inspector to conduct his inspection cannot be viewed as establishing that worker safety is not at risk. In my view, the existence of inflammable liquids and fumes in proximity to sources of ignition without adequate fire protection gives rise to reasonable concerns about worker safety. I am not satisfied that the fact that in these circumstances there has not yet been an injury does not mean that there is not some risk of injury.
The Board discussed its approach to determining whether to grant an application to suspend the operation of an inspector’s order 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.
The applicant has not demonstrated compelling grounds that would cause the Board to suspend the operation of the orders under appeal. The submissions of counsel for the Inspector and the Ministry, which point out that the Inspector, who is trained in health and safety matters, had the assistance of an engineer who also examined the workplace and provided a report to the inspector expressing concern about a number of items in the workplace, demonstrate that there are safety hazards in the applicant’s workplace. (Of course, I do not purport to comment upon whether the Inspector’s orders were correct. That is a matter to be determined when the appeals are heard.) Thus, I am of the view, based on the material filed, that suspending the operation of the orders may endanger the applicant’s workers.
The applicant submits that it would be prejudiced if its application for the suspension is not granted. It argues that if it complies with the orders prior to the hearing of its appeal in Board File No. 3568-99-HS, its appeal would be moot. I disagree. The applicant will be able to continue to argue that the order was not appropriate or authorized by the Act at the hearing of the appeal. The fact of compliance does not, in my view, preclude the Board from determining the merits of the appeal. The applicant also submitted that compliance with the orders is unnecessary and therefore would involve an unnecessary expenditure of some money, but did not indicate the magnitude of the expenditure. There was no suggestion from the applicant that complying with the orders while its appeals were pending would impair the applicant’s ability to carry on business or adversely affect its relationships with its customers, suppliers or employees. The applicant has not persuaded me that it would be unduly prejudiced by complying with the orders pending the disposition of the appeals.
As I am satisfied that suspending the operation of the orders under appeal may endanger the applicant’s workers and that the applicant would not be unduly prejudiced if the suspension request is dismissed, there is no need for me to consider whether the applicant has made out a strong prima facie for a successful appeal of either of the two orders.
The application for suspension of the orders issued by Inspector Hutt in F.V. 845655 dated February 4, 2000 and in F.V. 845670 dated April 14, 2000 is dismissed.
“Harry Freedman”
for the Board