Roman Chorkawyj v. G.F. Mason Excavating Ltd.
File No.: 1427-01-OH Date: November 28, 2001
Before: David A. McKee, Vice-Chair.
Appearances: Roman Chorkawyj appearing on his own behalf; Dan Crawford and Susan Merinchuk for the responding party.
DECISION OF THE BOARD
1This is an application alleging a violation of section 50 of the Occupational Health and Safety Act, R.S.O. 1990 ch. O1 as amended (the "Act"). A hearing in this matter was held on November 28, 2001.
2At the commencement of the hearing, the Board on its own motion raised the issue of whether the application disclosed a prima facie case. Section 50 requires essentially two elements to be proved, first that the applicant had acted in compliance with the Act or sought enforcement of it, and second that the employer had taken some action by way of reprisal.
3Neither of these elements is pleaded in the application. At the hearing the Board gave Mr. Chorkawyj the opportunity to expand on his pleadings, after explaining the difficulty in proceeding with the application in its present form. Mr. Chorkawyj was very candid about what had happened and why he had done certain things. His honesty in the face of the Board's warning that the application might be defective was admirable.
4However, the fact remains that there are no facts in the application which, even if all are accepted as true, could constitute a violation of section 50 of the Act. Mr. Chorkawyj's complaints centred on two matters. He was repeatedly required to climb up the side of his truck to clean off overflowing loads. He found the work physically taxing, and entirely unnecessary if the proper loading procedures were filed. His concern about safety was expressed only in respect of what he perceives to be a Ministry of Transport requirement that trucks be clean (for general safety reasons) before using a highway. Even to the extent that he expressed these general road safety concerns to his employer, such concerns do not fall within the purview of this Act. In fact, it was the difficult, dirty and unnecessary aspect of the work that Mr. Chorkawyj objected to.
5He also objected to what he perceived to be an inadequately maintained truck. Again, his concerns were expressed in respect of the difficulty of working with such a vehicle, rather than a matter of concern for the safety of himself or other workers.
6There is no assertion of an employer reprisal. Mr. Chorkawyj stated that he was told in the end that things were not going to change and if he didn't like that, he could move on. In response to this, he did quit. It was only after quitting that he called the Workplace Safety and Insurance Board and the Ministry of Transportation and began to receive advice about the safety aspects of his former job. Given the time of these calls, nothing his employer did could possibly have been in response to events which had not occurred.
7Accordingly, even if all of the facts as alleged by the applicant were proven, they could not be the basis for a finding of a violation of the Act by the responding party. This application is dismissed.
"David A. McKee"
for the Board