Greater Essex County District School Board v. Ontario Secondary School Teachers Federation, District 9, 2001 CanLII 19081

1418-01-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, and Ministry of Labour, Responding Parties.

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; September 11, 2001

1This is a request for the suspension of several Orders made by an Occupational Health and Safety Officer. The request is made under section 61(7) of the Occupational Health and Safety Act, RSO 1990 c. O.1 (the “Act”). Both the Orders and the Request for a Suspension are somewhat unusual. They do not deal with a manner in which the employer operates its workplace, but rather with the process by which the employer formulates policies to be applied in the workplace.

2The Board's task is complicated by the fact that the Officer's Order and report is something less than a model of clarity. The employer’s appeal is similarly difficult to follow, perhaps because of what counsel had to work with in the first place. At the risk of gross oversimplification, this dispute appears to be about the following. The Greater Essex County District School Board is a result of an amalgamation between two pre-existing school boards. Both of these boards had developed policies about how to deal with violence in schools which they operated. Since the amalgamation, these policies (like many others) needed to be harmonized. Further, the Province of Ontario has enacted the Ontario Safe Schools Act which requires the formulation of policies directed at the issues identified in the Act. It appears that dispute among these parties is a dispute about the nature and quality of the input that the Educational Joint Health and Safety Committee (“E. J. H. & S. C.” or the “Committee”) will have into the formulation of that new policy.

3In essence, the Officer appears to have required the employer to either permit the E. J. H. & S. C. greater input into the policy formulation, or to give it greater notice or information about the process. The Employer seeks to have these orders suspended for various reasons. The Ministry of Labour takes no position on the suspension of these orders. A member of the E. J. H. & S. C. wrote to the Board indicating a desire to make representations, but has not done so in the time allotted.

4The usual criteria which the Board looks at in dealing with a request for a suspension of the Order are:

(1) Whether the suspension of the Order would endanger worker safety;

(2) The degree of prejudice to the employer, and

(3) Whether there is a strong prima facie case for a successful appeal of the Order.

In the circumstances of this case, the first and second criteria are not determinative, and some additional considerations are important. The Board will deal with each of these orders in turn.

Order No. 1

Pursuant to Section 9(21) of the Occupational Health and Safety Act, a response of a constructor or employer under subsection (20) shall contain a timetable for implementing the recommendations the constructor or employer agrees with and give reasons why the constructor or employer disagrees with any recommendation that the constructor or employer does not accept.

NOTE: Order is specific to EJHSC Recommendation #3 (Dated February 20, 2001).

5The employer responds it cannot provide a timetable for the formulation of the policy. There is a draft policy in existence at this time. It must be harmonized with the regulations under the Ontario Safe Schools Act. These regulations have not yet been promulgated. Therefore it is impossible for the employer to comply with the Order. Further, the Order requires the employer, in the alternative, to give the reasons why it disagrees with any recommendation that it does not accept. The grounds of this appeal set out in the application constitute a statement of the extent to which the employer disagrees with the recommendation No. 3 of the committee's report. It does not appear that the employer is actually opposed to training, but that it cannot respond in detail until the guidelines are finalized. It has no control over when the guidelines will be finalized. The Board will not require an employer to comply with an order with which it is impossible to comply. The Order is therefore suspended.

Order No. 2

Pursuant to Section 25(2)(a) of the Occupational Health & Safety Act, without limiting the strict duty imposed by subsection (1), an employer shall, (a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

NOTE: Order is specific to workplace violence policies and procedures.

Order No. 3

Pursuant to Subsection 57(4) of the Occupational Health & Safety Act, the employer shall submit a Compliance Plan for Order #2, detailing how and what the Employer plans to do to comply with the order, as well as when the Employer intends to achieve compliance.

6These orders are simply a statement of the obligations of an employer under the Act. It lacks any specific substance as to what action the employer is to undertake or refrain from undertaking. From the Narrative it appears that the Officer’s concern was that only the members of the E. J. H. & S. C. would be given a copy of the information, and not all employees. Given the problem with implementing anything referred to above, this concern is theoretical at best. If there are no policies in place, one cannot determine what the employer plans to do. The Committee asked about the provision of information to members of the Committee. The employer answered that question. It was not asked, nor did it say anything about distribution of information to other employees. It is not possible to infer from that answer that the employer would likely answer a different question in a manner which would contravene the Act. The Board suspends the Order until the hearing of this matter, although not the obligation under the Act which the Order contains. Since Order No. 3 requires a compliance plan for something which is suspended, it too will be suspended.

Order No. 4

NOTE: Order is specific to EJHSC Recommendation #4 (Dated February 20, 2001). The specifics of the response by the employer shall detail the following; a) when procedures and or (Record Keeping) tracking system will be implemented. i.e. including timelines in which the JHSC shall receive these.

b) The Board’s decision to not adopt the recommendations forwarded by the EJHSC.

NOTE: A copy of the Board’s response shall be provided to the Ministry of Labour.

7With respect to this Order, the Employer appears to have a strong prima facie case. Its response of March 5th, 2001 appears to be satisfactory compliance with the Order. That is, when one looks at the Narrative, one can see what the Officer thought was required of the employer. The Order however, refers to “a timetable for implementing the recommendations” or giving the “reasons why the employer disagrees with any recommendation”. To the extent that the Order deals with the employer’s response to the recommendations of the Committee, it has done both, either in its response to the Committee or in its appeal.

8The Inspector may well feel that the employer’s response is inadequate, and that other measures should be taken. If the employer refuses to do so, that might constitute a violation of the Act. However, with respect to this Order, the employer has complied with the requirements set out in the Order. While the Narrative suggests other things the employer might consider, it is this Order that is the subject of the appeal. I cannot understand what else the employer would do to comply with the Order as it stands. Therefore the Board will not suspend this Order, but nothing herein suggests that the failure to suspend the Order means that the Board expects the employer to do anything it has not already done between this date and the hearing date.

Order No. 5

Pursuant to Section 25(2)(1) of the Occupational Health and Safety Act, without limiting the strict duty imposed by subsection (1), an employer shall, (1) provide to the committee or to a health and safety representative the results of a report respecting occupational health and safety that is in the employer’s possession and, if that report is in writing, a copy of the portions of the report that concern occupational health and safety;

NOTE: Order is specific to EJHSC Recommendation #5 (Dated February 20, 2001).

9Here I infer or that the difference between the parties is the Committee's request that "all incidents committed against all employees involving police action and/or serious of violence in the workplace issues immediately to the E. J. H. & S. C. members". In its application, the employer asserts, "in all situations involving accidents and injuries (which include accident and injuries involving workplace violence) a report is prepared and copy is given to the E. J. H. & S. C. In addition, the Committee receives updated reports regarding those situations. The [employer] is complying, in all respects, with a requirement of the Act and Regulation 851." There may be an issue with respect to the speed with which the reports are delivered to the Committee, although this is unclear.

10The employer also appears to assert that the reports are prepared annually only. Section 25(2)(l) deals only with reports that exist. It does not deal with what further and better information the employer might gather. The employer appears to be complying with the specific Order made, i.e. the delivery of reports to the Committee. It asserts that it is. In the circumstances, and in the absence of any factual basis for disputing that assertion, there is no need to suspend the Order, although that is not to say the employer should be doing anything different from what it is already doing.

Conclusion

11For the reasons given, I suspended Order Nos. 1, 2 & 3 until hearing of this appeal. I do not suspend Order Nos. 4 and 5, although it is not apparent that a refusal to suspend those Orders will require the employer to do anything different from what it is already doing or has already done.

“David A. McKee”

for the Board