3643-00-HS; 3645-00-HS Ministry of Natural Resources, Applicant v. Stephan Dubuc, Bill Wilhem, Inspector, Ontario Public Service Employees Union and Ministry of Labour, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair.
DECISION OF THE BOARD; April 10, 2001
Board File No. 3645-00-HS
1This is an application under section 61(7) of the Occupational Health and Safety Act, (the “Act”) for the suspension of the operation of orders issued by Inspector Bill Wilhem pending the disposition of the applicant’s appeal of those orders. The applicant filed an appeal on March 12, 2001 under section 61 of the Act of the orders made by Inspector Bill Wilhem in Field Visit No. 906088 dated February 13, 2001which is pending before the Board in Board File No. 3643-00-HS.
2The applicant is appealing orders no. 1 through 4 of Inspector Bill Wilhelm’s order in Field Visit No. 906088. The orders require the applicant to:
provide and maintain dedicated police radio communication dispatch service to all field active conservation officers in Ontario engaged in patrols both inside and outside of their vehicles on a 24 hour 7 day a week basis;
written plan of compliance with respect to this communication dispatch service;
prepare a written manual of all enforcement policy, procedures and protocol including rules of engagement and radio communication for distribution to and use of conservation officers in the performance of their duties;
written plan of compliance with respect to this manual.
3These orders are made pursuant to section 25(2)(h) of the Act for the reasonable precaution and protection of the employer’s workers, in this case the conservation officers.
4The trade union, who is a party to this application, opposes any suspension of the Inspector’s orders but would be prepared to extend the compliance dates for the orders under certain conditions as set out in its response.
5Counsel for the Ministry of Labour states in his letter of March 27, 2001 that “The Ministry of Labour takes no position on the application for suspension in this matter”.
6The Inspector’s report in Field Visit No. 906088 dated February 13, 2001 covers 21 pages and details a lengthy history of the communication system utilized by the Ministry of Natural Resources for the conservation officers in the field. The union in support of its request that this suspension be dismissed provided the Board with numerous memos which indicate apparent communications difficulties experienced by conservation officers in the field. Given the nature of the work, the isolation in which the work is performed, it appears that conservation officers rely on the communications system for their safety.
7It is the applicant who has the burden of establishing that suspending the operation of the Inspector’s order would not endanger a worker. The Board is not persuaded by the submissions of the applicant that suspending this order does not pose a risk to the workers. The Board has discussed its approach to determining whether to grant an application to suspend the operation of an inspector’s order in R.J. Dungey and Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 at 87:
….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 be suspended prior to the hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so.
8The applicant has not demonstrated compelling grounds that would cause the Board to suspend the operation of the orders under appeal. Any prejudice to the applicant must be weighed against the potential risk for workers in these circumstances. There is a potential risk, based on the materials filed with the Board, that workers may be endangered if the orders are suspended.
9The application for suspension of the orders 1 through 4 issued by Inspector Bill Wilhelm in Field Visit No. 906088 dated February 13, 2001 is dismissed.
10This matter is referred to the Registrar and the Manager of Field Services for processing.
“Inge M. Stamp”
for the Board