1732-00-HS Toronto Transit Commission, Applicant v. Amalgamated Transit Union, Local 113 and Ministry of Labour, Responding Parties.

1733-00-HS Toronto Transit Commission, Applicant v. Amalgamated Transit Union, Local 113 and Ministry of Labour, Responding Parties.

BEFORE: John Morgan Lewis, Vice-Chair.

DECISION OF THE BOARD; October 18, 2000

1This is an application pursuant to section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (the “Act”) seeking the suspension of 4 orders issued by Inspector Anna Fliegl in Field Visit No. 842574 dated August 14, 2000. The application to suspend the orders has been assigned Board File No. 1733-00-HS. The applicant has also filed an appeal of the 4 orders, which has been assigned Board File No. 1732-00-HS. This decision deals only with the suspension request.

2The Board has received submissions from the applicant, the Ministry of Labour and Inspector Fliegl, and from counsel for Amalgamated Transit Union, Local 113, which is the certified bargaining agent representing employees affected by the orders. Having reviewed the various submissions, it would appear that during an investigation of an unrelated complaint, Inspector Fliegl noted that the applicant did not have, in her opinion, an adequate lock-out procedure to protect the safety of workers. These workers include those who perform various tasks on subway cars and those who have access to the area where these subway cars are located in the carhouse. Inspector Fliegl consulted with a Ministry of Labour Electrical Engineer who also attended at the workplace to examine the subway cars and to review the adequacy of the workplace practices. Inspector Fliegl issued 4 orders in relation to the applicant’s lock-out procedures. The orders in dispute are set out as follows:

001 Pursuant to section 42(1) of O.Reg. 851/90 the employer shall ensure that all potential sources of electrical power to a subway vehicle are disconnected, locked out of service and tagged before and while work is being done on or near live exposed parts of any electrical equipment in the vehicle including work on collector shoes.

002 Pursuant to section 57(4) OHSA, the employer shall prepare and submit a compliance plan specifying

i) what will be done to comply with order 001 of this report and

ii) rationale for action chosen to comply with order 001 of this report and

iii) date when compliance with order 001 of this report will be achieved.

This order will be complied with 29 Sept 2000

3Pursuant to section 25(2)(h) OHSA, the employer shall take the reasonable precaution of guarding the energized collector shoes of a subway vehicle against accidental contact by persons.

4Pursuant to section 53(4) OHSA, the employer shall prepare and submit a compliance plan specifying

i) what will be done to comply with order 003 of this report and

ii) rationale for action chosen to comply with order 003 of this report and

iii) date when compliance with order 003 of this report will be achieved.

This order will be complied with by 29 Sept 2000

3In 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.

4This 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:

19. 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.

5The orders in dispute clearly impact upon worker safety. As such, the applicant must meet a high threshold to persuade the Board to suspend the operation of the orders pending the disposition of their appeal. While the applicant claims that it will be prejudiced if the orders are not suspended, it has pleaded little in the way of material facts to substantiate this claim. The Board recognized that the applicant will be inconvenienced by the imposition of the orders but that is true of most orders issued by Health and Safety Inspectors. The applicant has failed to demonstrate significant prejudice, which would compel the Board to suspend the operation of the orders in light of the possibility of endangering worker safety.

6In its appeal the applicant asserts that the orders be rescinded as they are unreasonable, unnecessary and constitute errors on the part of Inspector Fliegl. Without the benefit of evidence, it is difficult for the Board to determine the merits of the appeal. While the applicant will have a full opportunity to present evidence and argument to support its position in the appeal, at this stage in the proceedings I am not satisfied that it is more likely than not to be successful in its appeal on the merits.

Disposition

7Having regard to the material filed by the parties, the Board is not satisfied that it should exercise its discretion under section 61(7) of the Act to suspend the operation of the orders in Field Visit No. 842574. Accordingly this application seeking the suspension of the orders is hereby dismissed. The appeal in Board File No. 1732-00-HS is to be processed in the normal course.

“John Morgan Lewis”

for the Board