1977-01-HS; 1978-01-HS Greater Essex County District School Board, Applicant v. Ontario Secondary School Teachers’ Federation, District 9; Elementary Teachers’ Federation of Ontario; Canadian Union of Public Employees Local 1348; Penny Allen et al; Canadian Union of Public Employees Local 27, and Ministry of Labour, Responding Parties.

BEFORE: Caroline Rowan, Vice-Chair.

DECISION OF THE BOARD; November 14, 2001

1. This is an application under section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c. O1, as amended (the “OHSA”) seeking the suspension of Order No. 1 issued by Inspector Wheeler in Field Visit No. 1049134 on September 19, 2001. The application to suspend Order No. 1 has been assigned Board File No. 1978-01-HS. The applicant has also filed an appeal of Order No. 1 which has been assigned Board File No. 1977-01-HS. This decision deals only with the suspension request.

2. The Order in issue, generally speaking, requires the applicant, Greater Essex County District School Board, (the “employer”) to conduct air monitoring in various rooms at the employer’s premises. Order No. 1, which is the subject of this proceeding, is set out as follows:

Pursuant to Section 54(1)(f) of the Act the employer shall conduct full shift air monitoring for carbon dioxide, temperature and relative humidity in rooms B15, B12, B5, B7, A3 and the Gym according to the open door and window policy under maximum occupancy conditions. The air monitoring conducted at the expense of the employer shall be performed by a person with expert or professional knowledge in industrial hygiene. A report, at the expense of the employer shall be provided by the expert or professional detailing the air sampling period and shall be submitted to this inspector for review.

The employer states that it disagrees with when the testing should be conducted, the manner in which the testing should be carried out and the appropriate standard to be used. It seeks suspension of the Order under section 61(7) of the OHSA pending a determination of the merits of its appeal.

3. In response to the application, the responding party, the Ministry of Labour, (the “Ministry”) advised the Board that it was taking no position on the applicant’s request to suspend Order No. 1. One of the other responding parties, Elementary Teachers’ Federation of Ontario (the “union”), objected to the suspension of the Order in its response. By decision dated November 5, 2001, the Board (differently constituted) granted the employer’s request for an extension to November 7, 2001 to file its submissions in response to that objection.

4. In support of its application for suspension, the employer notes that it has already incurred the expense of obtaining an air quality report from Pinchin Environmental (in September 2001), which report shows compliance with the OHSA. It submits that it should not be put to the expense of obtaining another report at this time in circumstances where there is an issue with respect to the proper standard and methodology to be followed in gathering data, which is central to its appeal of the order. The applicant further notes that it intends to conduct air quality testing in true winter conditions (i.e. in January 2001) and should not be required “to simulate a situation which will exist in fact shortly”.

5. The union objects to the suspension of the order on various grounds including that the health and safety of the employees will be compromised if the Order is suspended. It notes that section 127 of Regulation 851 of the OHSA requires that “[a]n industrial establishment shall be adequately ventilated by either natural or mechanical means such that the atmosphere does not endanger the health and safety of workers.” It also states that the Order to conduct air quality testing was made by the Inspector under section 54(1)(f) of the OHSA in an effort to determine whether or not the employer is in compliance with its obligations under the OHSA.

6. Although the Order itself does not specify what standard must be met in order to establish compliance, there appears to be a dispute between the employer and the union in this regard going to the merits of the appeal. More specifically, there appears to be a difference between them regarding whether or not compliance with carbon dioxide levels referred to in the ASHRAE guidelines or rather those referred to in Regulation 833 is required in order to meet the employer’s obligations under Regulation 851 to adequately ventilate the premises.

7. The union states that a number of teachers have complained about symptoms relating to poor air quality at the employer’s premises, which complaints resulted in various air quality tests being conducted by the employer in February and March 2001 and again in September 2001. The union disputes the applicant’s contention that these reports, which were provided to the Inspector prior to the order being issued, show compliance with the OHSA as it relates to adequate air quality required under Regulation 851. In support of its position that the health and safety of the employees will be compromised, the union attaches “…a copy of a letter from the WSIB providing lost time benefits to a teacher at the School for time lost due to poor air quality in the School during February and March 2001, a period of time in which the School Board claims the indoor air quality complied with the OHSA”.

8. In response, the employer, among other things, notes that it has received complaints of headache and irritation, which it states could have been caused by many things and “...that the correlation between these symptoms and the air quality is unproven.” With respect to the WSIB determination referred to by the union, the responding party points out “…that WSIB stated, “In conclusion there have been some deficiencies in the indoor air quality in the school where you work and it is felt that this aggravated your pre-existing condition”. This conclusion cannot be read to apply across the board to non-susceptible workers. Furthermore, W.S.I.B. based its conclusion on carbon dioxide levels of about or above 1000 ppm., which levels are ASHRAE guidelines only. This claim has been appealed by the [e]mployer and the outcome of that appeal is not yet known”.

9. Section 61(7) of the OHSA reads as follows:

10. (7) On an appeal under subsection (1), the Board may suspend the operation of the order appealed from pending the disposition of the appeal. [emphasis added]

11. In dealing with a request to suspend an 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.

11. In addition to considering these factors, the Board has shown deference to the orders of inspectors. In General Motors of Canada Ltd., (File No. 3666-96-HS, decision dated June 2, 1997) Adjudicator Herman observed that “…the purposes of the OHSA are best served if [the inspector’s] decisions prevail, in the absence of a persuasive reason otherwise, and pending the full application for review”. The Board has also noted that worker safety is the predominant consideration in assessing whether to suspend an order issued by an inspector. In Upper Grand District School Board, [2000] OLRB Rep. Nov./Dec. 1253, the Board stated as follows:

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.

12. Having carefully reviewed the submissions filed by the parties and applying the factors the Board considers in determining whether to suspend the operation of an inspector’s order to the circumstances of this appeal, the Board is not persuaded to grant the suspension. In this case, the Board is not satisfied that the employer will suffer significant prejudice, which would compel the Board to suspend the operation of the order in light of the possibility of endangering worker safety.

13. While it is true that the employer will incur the expense of having air quality testing conducted and a report contemplated under the Order prepared, the employer did not indicate the magnitude of that expenditure. In addition, the employer indicates that it intends to have further air quality testing done in January 2001. As no hearing date has yet been set in the employer’s appeal, it appears that this would likely be prior to the disposition of its appeal. Given that the employer suggests that it will incur the expense of additional testing prior to the likely disposition of the appeal in any event and in view of the deference which is accorded to inspector’s decisions, the Board sees no compelling reason why the testing should not be conducted right away and in the manner required by the Order.

14. The Board also disagrees with the employer’s suggestion that if it complies with the Order prior to the hearing of its appeal, its appeal would be moot. The applicant will be able to continue to argue that the Order was not appropriate or authorized by the OHSA at the hearing of the appeal. The question of the appropriate testing required to monitor air quality is also presumably of on-going concern to the parties.

15. The Board also finds having regard to the material before it that there exists a possibility of endangering worker safety if the Order were suspended. In this respect, the Board notes that there is no dispute between the parties that the employer has received a number of complaints from teachers about symptoms of headache and irritation, which may, at least, arguably be related to air quality. There is also no dispute that the WSIB has approved a lost time claim for a teacher on the basis of its finding that there was a correlation between poor air quality in the employer’s premises and the workers’ symptoms. The fact that that decision is under appeal by the employer and that the decision in issue related to a teacher who was found to have had a pre-existing condition does not detract from the Board’s conclusion based on the material before it that there is a possibility of endangering worker safety if the Order is suspended.

16. Without the benefit of evidence on the merits, it is impossible for the Board to determine the merits of the appeal. While the applicant will have a full opportunity to bring evidence and argument to support is position, at this point, I am not satisfied that it is more likely than not to be successful in its appeal on the merits.

DISPOSITION

17. Having regard to the material filed by the parties in this application, the Board is not satisfied that it should exercise its discretion under section 61(7) of the OHSA to suspend the operation of the order made on September 19, 2001.

“Caroline Rowan”

for the Board