2511-01-HS; 2512-01-HS Penny & Casson a Division of Serv-A-Station Maintenance Inc., Applicant v. Arvid Alle, Inspector and Ministry of Labour, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; December 20, 2001
The Board directed that the request for suspension, in Board File No. 2512-01-HS, of the operation of Order No. 9 in Field Visit No. 904886 dated November 26, 2001 be expedited.
Pursuant to the Board’s decision in this matter dated December 7, 2001 the Ministry of Labour has filed its response to the request for suspension of Order No. 9.
The Ministry takes the position that Order No. 9 issued November 26, 2001 has been complied with and is no longer in effect. According to the Ministry there is no outstanding Order to suspend.
The Ministry has indicated that while it will be opposing the appeal of Order No. 9 in Board File 2511-01-HS it takes the position that the application for suspension of the Order is moot. There is no Order in place or in effect that can be suspended.
The Ministry cited Hotel-Dieu Grace Hospital and Ontario (Ministry Of Labour) (Re) unreported, February 24, 1997, OHS 97-07, Ont. Adj. M.E. Cummings at page 3 and First Ontario Credit Union Ltd. and OPEIU (Re) (unreported, June 28, 2001, 0229-00-HS, O.L.R.B., I.M. Stamp) in support for its position that this application for suspension of the Order No. 9 is moot.
The applicant does not agree with the Ministry’s interpretation that Order No. 9 has been complied with and that the applicant can proceed to complete its excavation work. The applicant submits if it is indeed the Ministry’s position that Order No. 9 “is no longer in place” and “…….is no longer in effect”, then there should be no objection to having this Order suspended pending the outcome of the appeal.
The applicant requests that the Board suspend Order No. 9 and note that the Ministry’s position that it is no longer in effect.
Decision
- On November 26, 2001 Inspector Alle issued a number of Orders in F.V. Report #904886. Orders No. 8, 9 and 10 are relevant to this issue and state as follows:
No. 8 Ensure that no person shall enter or be permitted to enter an excavation that does not comply with this part. ….
No. 9 Ensure that the walls of the excavation at the project be supported by a support system or have a slope from the bottom of the excavation on a gradient of one to one.
No. 10 No further excavating or disturbance of the excavation at the project shall be undertaken until further examination by a Ministry of Labour engineer has taken place.
- As a result of a follow-up visit on November 27, 2001 Inspector Alle made the following orders/comments in F.V. Report #904887:
Order #8 Stands and must be complied with for the duration of the project. Order #9 will be complied with by means of backfilling the excavation/trench by mechanical means. Inspector was advised by the supervisor that the backfilling will be commenced forthwith and only operators of equipment while at their operators station will be allowed into the excavation. Order #10 is removed and backfilling of the excavation may resume.
- On November 29, 2001 the applicant wrote to the Ministry as follows:
Dear Sir,
As the General Contractor on site performing work for Imperial Oil, the owner, please find our response to your written field orders.
The field orders are identified as – Project Form number 904886
Orders #1 thru 3 and #5 on FV 904886 have been complied with as indicated in the text on FV 904887. Orders #4 & #6 are no longer applicable as order #5 has been complied with and work has been permitted to resume. Order #7 has been complied with. A copy of the document is on site and on file with the City of North Bay, Roads Department.
Order #8 – This order is being complied with.
Order #9 – This order has been complied with by backfilling. The area in question was backfilled on Tuesday November 27, 2001 as per text in FV #904887.
Order #10 – It is understood that this order has been rescinded in FV #904887.
The final excavation work must now be performed in order to complete the project. A procedure to perform this work has been developed by the on site geo-technical consultant. The procedure is attached for your information. We intend to follow this procedure and perform the work in a safe and timely manner.
I trust that this meets with our approval.
Yours truly,
- The Ministry in its submissions to the Board had this to say with respect to the above letter:
d) The Ministry of Labour did not respond to Penny & Casson’s letter of November 29, 2001 (found in the Appellant’s appeal materials in Tab “I”) because no response was requested nor required. As the letter states, “The procedure is attached for your information. We intend to follow this procedure and perform the work in a safe and timely manner.” The company correctly asserted that it was free to continue working at the project. The letter also affirms the company’s understanding that “Order #9 …has been complied with by backfilling”.
The applicant indicated in its November 29, 2001 letter that it intended to proceed with the final excavation work and provided the procedure to be followed to the Ministry. The Ministry obviously accepted the procedure for the final excavation work as it indicated to the Board that there was no need to respond.
In the follow-up visit on November 27, 2001 the Inspector found that Order No. 9 had been complied with by backfilling the excavation/trench by mechanical means. The inspector goes on to say that only operators of equipment while at their operators station will be allowed into the excavation. The Inspector indicated that Order No. 10 was removed and backfilling of the excavation may resume.
The Ministry has accepted the procedure for the excavation work as outlined in the procedure prepared by the on-site geo-technical consultant. It appears from the materials filed that the applicant has a concern that the Ministry’s position with respect to their view of the compliance or Order No. 9 relates to the backfilling only and not the excavation work. However, given the Ministry’s response in (d) referred to above, it does not take issue with the applicant’s procedure for performing the remaining excavation work.
To the extent that there is any confusion as to whether Order No. 9 is in partial or in complete compliance the Board hereby suspends the Order pending the appeal being heard on the merits.
Board File No. 2511-01-HS is referred to the Registrar and the Manager of Field Services to be processed in the normal course.
“Inge M. Stamp”
for the Board