Ontario Labour Relations Board
2450-00-HS Upper Grand District School Board, Appellant v. Ontario Secondary School Teachers’ Federation, Canadian Union of Public Employees, Local 256, Elementary Teachers’ Federation of Ontario, Gibson McIlwrath, Inspector and Ministry of Labour, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; December 13, 2000
1This is an application under section 61(7) of the Occupational Health and Safety Act, R. S. O. 1990, c. 0. 1, as amended (the “Act”) for suspension of the order issued by Inspector Gib McIlwrath (the “Inspector”) in Field Visit No. 911980 issued on October 18, 2000 (“the Order”) pending the disposition of the appeal from the Order. This application was filed with the Board on November 17, 2000, the same day the appeal of that Order was filed with the Board (Board File No. 2449-00-HS). As the appeal was filed on thirtieth day after the making of the Order, it was made within the time prescribed by section 61(1) of the Act and therefore this application is properly before the Board.
2The Order directed the appellant to “cause a joint health and safety committee to be established and maintained at the workplace” because there were more than twenty workers regularly employed at the workplace. The Inspector purported to make the Order pursuant to section 9(4) of the Act. The appellant understood that the workplace to which the Order referred was the Princess Elizabeth Public School, located at 51 Elizabeth St., Orangeville (the “School”).
3The appellant is a school board created on January 1, 1998 as a result of the amalgamation of the Dufferin County School Board (the “Dufferin Board”) and the Wellington County School Board (the “Wellington Board”). Approximately 75% of the employees of the appellant had been previously employed by the Wellington Board. The appellant has collective bargaining relationships with three unions, Ontario Secondary School Teachers’ Federation, Elementary Teachers’ Federation of Ontario and Canadian Union of Public Employees, Local 256 (the “Unions”) who represent most of the workers employed by the appellant. Prior to the amalgamation, the Wellington Board operated with a multi-site joint health and safety committee (a “multi-site JHSC”) under the approval of the Minister of Labour given in 1995 until the amalgamation. There is no indication in the appellant’s materials whether the Dufferin Board had also established an approved multi-site JHSC, although the appellant does state at paragraph 26 of schedule A of its application “…the predecessor Dufferin School Board, which had a more localized JHSC structure.” The School was under the authority of the Dufferin Board prior to the amalgamation.
4After the amalgamation, the appellant and the Unions formed a multi-site JHSC that had its first meeting on September, 1, 1998. The appellant and the Unions negotiated the terms of reference for the multi-site JHSC and submitted them to the Minister of Labour for approval on May 10, 1999. The appellant submits that the request for approval was, in essence, a request to “re-approve” a multi-site JHSC. (I assume that the appellant used the term “re-approve” in its submissions because the terms of reference of the multi-site JHSC put in place by the appellant and the Unions was similar, if not identical, to the multi-site JHSC approved by the Minister of Labour in 1995, although the appellant does not assert that in its material.) The Minister has not given his approval and the appellant submits that the Minister’s approval is still pending.
5The Inspector and the Ministry of Labour oppose the request for a suspension of the Order. The Unions have not filed a response to this application, despite having been served with a copy of the application and a Confirmation of Filing of Application for Suspension of Inspector’s Order dated November 22, 2000 (Form B-30) by the Registrar.
6Section 9(4) of the Act (on which the Inspector relied to issue the Order) requires an employer to cause a JHSC to be established and maintained at the workplace where a JHSC is required by reason of section 9(2) of the Act unless there was a health and safety committee in place on October 1, 1979. It is clear that the School is a workplace at which twenty or more workers are regularly employed and therefore a JHSC is required at that workplace pursuant to section 9(2)(a) of the Act, unless the Minister, under section 9(3.1) of the Act permits an employer to establish and maintain one JHSC for more than one workplace. It appears that the appellant awaits the Minister’s order in writing permitting that multi-site JHSC.
7The parties do not disagree over the appropriate principles that are applicable in assessing whether to suspend the operation of an order pending the disposition of an appeal. Those principles have been set out in a number of decisions, including R. J. Dungey and Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 where the Board at page 86, paragraph 13 wrote:
Adjudicators previously and the Board more recently adopted an approach that tries to balance the different interests of the parties affected by an order. That balancing of interests requires the Board to consider many factors including principally the following three factors:
(i) whether the suspension of the order would endanger worker safety,
(ii) the degree of prejudice to the employer, and
(iii) whether there is a string prima facie case for a successful appeal of the order.
See the decision of Adjudicator Robert Herman in General Motors of Canada Limited, decision dated June 2, 1997, unreported, Board File No. 3666-96-HS which was recently adopted by the Board in The Great Atlantic and Pacific Company of Canada Ltd., Board File No. 2118-98-HS, unreported, decision dated November 24, 1998, (suspension of order granted) and in The Great Atlantic and Pacific Company of Canada Ltd., Board File No. 3025-98-HS, unreported decision dated December 23, 1998 (suspension of order dismissed).
In Regional Municipality of Hamilton-Wentworth, [1998] OLRB Rep. July/Aug. 709 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., supra, 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.
8In my view, if the appellant cannot demonstrate a strong prima facie case on the merits of the appeal, then it is not necessary to consider either the degree of prejudice to the appellant or whether the suspension would endanger worker safety. The appellant submits that the paramount consideration in determining whether an inspector’s order should be suspended is whether the suspension would place the health and safety of workers in jeopardy and refers to two Adjudicator decisions; City of Toronto, Office of Adjudication Decision Number AP 26/92, unreported, decision dated December 21, 1992 (Wacyk) and Mohawk College, Office of Adjudication Decision Number OHS 95-17, unreported, decision dated April 19, 1995, Q.L. cite [1995] O.O.H.S.A.D. No. 17 (Wacyk) in which the Adjudicator in both cases suspended the operation of an inspector’s order requiring the establishment of a JHSC. In the City of Toronto decision, the Adjudicator stated: “The paramount consideration is whether a suspension would place the health and safety of workers in jeopardy.” That principle was adopted and applied by the same Adjudicator in Mohawk College at paragraph 16 of that decision.
9In the City of Toronto case, as counsel for Ministry pointed out, there was no opposition filed by the Ministry or any other party to the suspension request. In Mohawk College, the Adjudicator noted at paragraph 21 that she was “…not in a position to make a determination with regard to whether the appellant has established a strong prima facie case for success on the appeal on the merits in this matter.” I accept that in assessing whether to suspend the operation of an inspector’s order, the paramount consideration is whether a suspension would place the health and safety of workers in jeopardy. That is so even if the appellant does establish a strong prima facie case for success on the appeal and also establishes that it would be prejudiced by the order under appeal. Worker safety has the highest priority in assessing whether to suspend the operation of an inspector’s order issued under the Act. Nevertheless, in my view, where worker safety is not likely to be jeopardized by the suspension of an order, it is still incumbent upon the appellant to satisfy the Board that its appeal has considerable merit in order to obtain a suspension of the order under appeal.
10The appellant submits that there is already a multi-site JHSC in place, based upon a structure and terms of reference that had been used by the Wellington Board and its workers and the unions that represented those workers. The appellant also points out that it and the Unions have spent considerable time and effort in negotiating over and ultimately agreeing to the terms of reference for that multi-site JHSC that have been submitted to the Minister for approval under section 9(3.1) of the Act. The appellant submits that worker safety would not be jeopardized if the inspector’s order were suspended since there is an existing, functioning multi-site JHSC in place. Counsel relies on the Adjudicator’s decisions in City of Toronto and Mohawk College for the proposition that worker safety would not be jeopardized because there already is a JHSC in place. Counsel for the Ministry submits that worker safety may well be adversely affected since there is no local representation from the School on the existing multi-site JHSC and furthermore, the multi-site JHSC does not carry out monthly inspections of the School or even a part of the School to meet the minimum requirement established by section 9(27) of the Act.
11For purposes of this application to suspend the operation of the Order under appeal, I am prepared to accept the appellant’s submission that worker safety is not likely to be jeopardized by granting the appellant’s request. I also note that the appellant asserts that establishing a JHSC solely for the School undermines the multi-site JHSC structure negotiated by it with the Unions. The appellant would also have to undergo unnecessary expense and incur training costs if it were required to establish a JHSC at the School in the midst of a multi-site JHSC. It argues (and I accept for purposes of this application) that it will be prejudiced if the Order is not suspended. Thus, it remains to consider whether the appellant has a strong prima facie case on the merits of the appeal.
12The starting point in assessing whether the appellant has a strong prima facie case is, in my view, determining the obligations it has under the Act with respect to the establishment of a JHSC. Section 9(2)(a) of the Act requires a JHSC at a workplace where twenty or more workers are regularly employed. Section 9(4) of the Act directs an employer to cause a JHSC to be established in the workplace unless the Minister is satisfied that there was a committee in place on October 1, 1979. Section 9(4) of the Act provides:
The constructor or employer shall cause a joint health and safety committee to be established and maintained at the workplace unless the Minister is satisfied that a committee of like nature or an arrangement, program or system in which the workers participate was, on the 1st day of October, 1979, established and maintained pursuant to a collective agreement or other agreement or arrangement and that such committee, arrangement, program or system provides benefits for the health and safety of the workers equal to, or greater than, the benefits to be derived under a committee established under this section.
Obviously, section 9(4) has no application to this matter notwithstanding that the Inspector purported to issue the Order under section 9(4). In my opinion, the reference to section 9(4) is not significant, as section 9(2)(a) of the Act clearly applies and does provide the statutory authority for the Order. Section 9(2)(a) of the Act provides:
(2) A joint health and safety committee is required,
(a) at a workplace at which twenty or more workers are regularly employed;
Section 9(3.1) establishes an exception to the obligation imposed by section 9(2)(a). It states:
Despite subsections (1) and (2), the Minister may, by order in writing, permit a constructor or an employer to establish and maintain one joint health and safety committee for more than one workplace or parts thereof, and may, in the order, provide for the composition, practice and procedure of any committee so established.
It seems to me that section 9(3.1) permits the Minister (or, pursuant to section 5 of the Act, an officer of the Ministry to whom such power has been delegated) to exempt an employer from the obligation imposed by section 9(2)(a) to have a JHSC at each of its workplaces and allow the employer to establish one multi-site JHSC as was done by the Wellington Board prior to the creation of the appellant. That is, unless the Minister has permitted an employer to establish a multi-site JHSC under section 9(3.1), then the obligation imposed by section 9(2)(a) of the Act to establish a JHSC at each workplace where twenty or more workers are regularly employed continues to apply to that employer.
13The entire foundation of the appellant’s contention that it has a strong prima facie case appears to rest on the submission at paragraphs 46 and 47 of schedule A to its application for suspension of the Order. The appellant states:
The power to approve a multi-site JHSC pursuant to s. 9(3.1) of the Act is legislatively granted to the Minister of Labour. This power is now administered by the Regional Directors. The jurisdiction to determine the question of approving the multi-site JHSC lies in the Regional Director, not in the Inspector, or his Order.
The Order cites s. 9(4) as authority for requiring the Applicant to set up this separate JHSC at one school. The entire scheme of s. 9 of the Act establishes a code for how and when a JHSC is required. The Applicant submits that the pending Application under s.9(3.1) ought to be determined by the Minister or his designate, before the issue of the instant Order is determined, as that is the intent and purpose of s.9(3.1) of the Act.
The appellant also appears to rely on the fact that a multi-site JHSC was approved by the Minister in 1995 for the Wellington Board and that, according to the appellant, a multi-site JHSC “since 1995 with approval, and since 1998 pending approval” has been in place and operating to support its submission that it has a strong argument to have the Order rescinded.
14I note that although the Wellington Board had a multi-site JHSC approved by the Minister, there is nothing in the material filed in this application which suggests that the Dufferin Board had an approved multi-site JHSC in place prior to the amalgamation. Since the School had been a part of the Dufferin Board prior to the amalgamation, the fact that the Wellington Board had a multi-site JHSC approved by the Minister in operation before the appellant came into existence is not, in my view, relevant to the appeal. The appellant had also filed correspondence with officials from the Ministry of Labour concerning its application for approval of its multi-site JHSC. The appellant referred to a letter dated November 7, 2000 from Sylvia Telizyn, Regional Program Advisor, Industrial Health and Safety, Western Region, and relied on a portion of that letter in which Ms. Telizyn wrote, after acknowledging that the appellant had expressed concern about the unfairness of the Order in the face of the process for obtaining Ministerial approval for a multi-site JHSC, that the appellant “…may wish to consider an appeal of the order.” Ms. Telizyn goes on to indicate that the appellant’s multi-site JHSC terms of reference “…are attempting to meet the intent and spirit of the Act but appear to have diminished the degree of participation at the local level…. Some sort of local involvement is required whether as a ‘site inspection team’, ‘site committee’ or ‘district committees’”. Thus, it is clear from the appellant’s material that the Minister or his representative have indicated that the terms submitted for a multi-site JHSC have not been approved in the form in which they were submitted.
15Counsel for the Ministry has submitted that the Ministry has advised the appellant:
“…that in order for a multi joint health and safety committee to be approved, there must be a worker representative employed at each of its constituent schools and monthly health and safety inspections must take place.
The Applicant does not have a worker representative at each of its constituent schools and there are no monthly health and safety inspections at each school. Therefore, although the application for a multi-site committee is “pending” at the Ministry for approval, the approval will not be granted unless the Applicant agrees to have a worker member of the committee at each school and conduct monthly inspections at each school. At present the application to the Minister for approval is at a standstill.
It is clear, both from the material filed by the appellant and from the submissions filed by the Ministry, that the appellant has not received an order in writing from the Minister permitting it to establish a multi-site JHSC. I am not in a position to comment upon the wisdom of the Minister’s position with respect to what the appellant must do before approval will be granted, since that is well beyond the purview of the Board in an application under section 61(7) of the Act to suspend the operation of an order. In the absence of such approval from the Minister under section 9(3.1) of the Act, I am of the view that the appellant will have considerable difficulty in persuading the Board when the appeal is heard that the Order (although made pursuant to section 9(4) of the Act, when section 9(2)(a) of the Act provides the basis for it) ought to be revoked. See also the Adjudicator’s decision in Kent County Board of Education, Board File Nos. 0363-97-HS and 0818-97-HS, unreported, decision dated June 19, 1997 (Cummings) in which the application to suspend an order requiring the establishment of a JHSC at a single school was dismissed despite there being no danger if the order were suspended and prejudice to the employer if it were not suspended on the basis that the Adjudicator was not persuaded that the appellants were “more likely than not to be successful in the appeal”.
16Finally, regard should be had to section 9(39) of the Act, which may have some application to this matter, since it appears to me that this appeal might well be characterized as a dispute over the application of section 9(2) of the Act. Section 9(39) provides:
Where a dispute arises as to the application of subsection (2), or the compliance or purported compliance therewith by a constructor or an employer, the dispute shall be decided by the Minister after consulting the constructor or the employer and the workers or the trade union or trade unions representing the workers.
Thus, if the issue on the appeal is, in fact, whether the appellant is required by section 9(2)(a) of the Act to have a JHSC, there may be some question as to the Board’s authority to determine this matter on its merits.
17In the result, I am not persuaded that the appellant has a strong prima facie case on the merits of the appeal. Despite the absence of jeopardy to workers if the Order were suspended pending the disposition of the appeal and the prejudice that the appellant will suffer by not suspending the Order, I am not satisfied that the Inspector’s Order should be suspended.
18This application to suspend the Order pending the Board’s determination of the appeal in Board File No. 2449-00-HS is dismissed.
“Harry Freedman”
for the Board