2645-00-HS Inco Limited, Applicant v. United Steelworkers of America and Ministry of Labour, Responding Parties.

2646-00-HS Inco Limited, Applicant v. United Steelworkers of America and Ministry of Labour, Responding Parties.

BEFORE: John Morgan Lewis, Vice-Chair.

DECISION OF THE BOARD; December 21, 2000

1. This is an application under section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (the “Act”) seeking the suspension of Order No. 2 issued by Inspector Jim Trottier in Field Visit No. 860351 on November 15, 2000. The application to suspend Order No. 2 has been assigned Board File No. 2646-00-HS. The applicant has also filed an appeal of Order No. 2 which has been assigned Board File No. 2645-00-HS. This decision deals only with the suspension request.

2. The applicant operates a smelter in Sudbury, Ontario. The smelter has a number of fans which are used as exhaust fans. These fans are approximately five to six feet in diameter. These fans are driven by shafts which are attached to electric motors through fan belts and pulleys. These shafts are approximately three inches in diameter. They are completely smooth and rounded, with no unguarded protrusions or bolts on them. The fans are completely guarded. The electric motor and belts are also guarded. However, there is a space of approximately five to six inches where there is no guard overtop of the shaft. The gap is approximately six feet above the plant floor.

3. On November 15, 2000, Inspector Jim Trottier inspected the smelter as part of a routine inspection. At that tine, he made a number of orders including one which required the applicant to guard the unguarded portions of the fans’ drive shaft. Order No. 2, which is the subject matter of these proceedings, is set out as follows:

A prime mover, machine, transmission equipment or thing that has an exposed moving part that may endanger the safety of any person shall be fenced or guarded unless its position, construction or attachment provides equivalent protection. RE: M-floor 34-725 & 726 fans.

4. In dealing with a request to suspend on order, the Board’s approach is set out succinctly in The Regional Municipality of Hamilton-Wentworth, [1998] OLRB Rep. Aug. 709:

Three factors have generally been considered by the Board when determining whether a suspension of an order is appropriate in the circumstances:

a) whether the suspension of the order (or, alternatively, the failure to suspend 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.

It is fair to say that the onus lies upon the party desiring the suspension order to establish that such an order ought to issue. Furthermore, the decision of Adjudicator Herman in General Motors of Canada Limited (File No. 3666-96-HS, decision dated June 2, 1997) stands for the proposition that a certain degree of deference must be afforded to decisions made by inspectors for the purposes of considering the suspension of these orders pending their appeal. In the absence of some persuasive reason to interfere with that order pending the hearing of the appeal on the merits, the original order should not be suspended.

5. This degree of deference is enhanced when workplace safety is in issue. I refer to the comments of the Board in R.J .Dungey & Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at paragraph 19:

6. Furthermore, 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 a hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so. Adjudicator Robert Herman noted in General Motors of Canada Ltd., supra, “…it is appropriate that deference be given to an Inspector’s decision on an application for suspension of his or her order. In the absence of some persuasive reason to interfere with that order pending the full application for review, it ought not to be suspended.” The burden of persuasiveness becomes greater, in my view, as the risk to the safety of workers increases with the suspension of the order.

7. The applicant contends that the suspension of Order No. 2 will most likely not result in any detriment to the safety of workers. The applicant asserts that the guarding that was in place at the time of the inspection was adequate under section 185 of Regulation 854 as either sufficient guarding , or as equivalent protection within the meaning of subsection (1). Alternatively, the applicant contends that modification were made to the fans so that they are now in compliance with the Act. Specifically, the applicant has moved the greased nipples (which are used to grease the bearings on the fans) so that they are farther away from the unguarded portion of the shaft and that employees are no longer required to work above the gap between the guards while the fans are running.

8. Counsel for the Ministry of Labour and Inspector Trottier contends that the suspension of Order No. 2 would endanger workers regardless of the modifications initiated by the applicant. It is argued that a risk for workers getting injured still exists if they either intentionally or accidentally exposes a part of their body to the exposed shaft.

9. Employees working in or near moving machinery such as the fans are performing inherently dangerous work. Such a finding is supported by the wording of Section 185 of Regulation 854 as well as other provisions in the Act and companion regulations. In R. v. Cancoil Thermal Corp. (1986), 27 CCC (3d) (OCA), the Ontario Court of Appeal made the following comments with respect to section 24 of Regulation 851:

A guard is a protective device designed to prevent personal injury to the operator of a machine which is potentially dangerous because of the presence of an exposed moving part. Such a guard or protective device must be capable of preventing any intentional or inadvertent physical access to the potentially dangerous moving part…

I agree with the applicant that the degree of risk has been reduced by the initiatives undertaken but the inherent dangerous nature of the fans remains unchanged. Accordingly, I find that the suspension of Order No. 2 would impact on worker safety.

9. The applicant contends that the refusal to suspend Order No. 2 will result in needless expenditure of resources and down time on the fans while the modifications are being made. The applicant has not provided any figures to support its position. I am certain that the applicant will be inconvenienced by complying with Order No. 2. In light of the Board’s determination that Order No. 2 impacts on worker safety, however, I am not satisfied that this unsubstantiated concern outweighs the impact on worker safety.

10. Without the benefit of evidence on the merits, it is difficult for the Board to assess the merits of the appeal. While the applicant will have a full opportunity to bring evidence and argument to support its position, at this point, I am not satisfied that the applicant has demonstrated a strong prima facie case that it is likely to succeed on its appeal.

Disposition

11. The application for a suspension of Order No. 2 is dismissed. Board File No. 2645-00-HS, being the appeal on the merits of this application, is to be forwarded to the Registrar for scheduling.

“John Morgan Lewis”

for the Board