Thames Valley District School Board v. Ministry of Labour, 2001 CanLII 9209

Thames Valley District School Board v. Ministry of Labour

1850-01-HS; 1851-01-HS Thames Valley District School Board, Applicant v. Ministry of Labour, Responding Party.

BEFORE: Christopher J. Albertyn, Vice-Chair.

DECISION OF THE BOARD; November 16, 2001

1Board File No. 1850-01-HS is an appeal pursuant to section 61(1) of the Occupational Health and Safety Act, R.S.O. 1990, c. 0. 1, as amended ("the Act"). Board File No. 1851-01-HS is an application to suspend the decision appealed against, pending the outcome of the appeal in Board File No. 1850-01-HS.

2A decision was issued on October 15, 2001. In it the Board sought submissions on the Board's jurisdiction to consider these applications. The Board asked also for greater clarity from the applicant as to the basis of the relief it was seeking.

3The applicant and the other parties have filed submissions.

4The applicant and the various trade unions and teachers' federations with which it has collective agreements concluded an agreement (referred to as "Terms of Reference"), after lengthy negotiations, to establish a Multi-Workplace Joint Health and Safety Committee. The applicant applied to the Minister of Labour for approval of the Committee and the agreed Terms of Reference.

5On September 4, 2001 the applicant was informed that the approval was denied. This information was conveyed to the applicant by Ms. Elliot, the Regional Program Advisor of the Ministry. The applicant, supported by the affected trade unions and teachers' federations, seeks to appeal against the Minister's decision, and, pending the outcome of the appeal, it wishes to have the Minister's decision suspended.

6The applicant and the unions and teachers' federations provide compelling reasons as to why they should be entitled to have their Committee. The primary issue, though, is not whether they should be entitled to have their Committee and operate under the Terms of Reference, but whether the Board has jurisdiction to deal with these applications. The applicant says the Board has jurisdiction; the Ministry says not.

7The Minister's decision was made under section 9(3.1) of the Act. Section 9 deals with the establishment of joint health and safety committees. It reads:

(3.1) Despite subsections (1) and (2), the Minister may, by order in writing, permit a constructor or an employer to establish and maintain one joint health and safety committee for more than one workplace or parts thereof, and may, in the order, provide for the composition, practice and procedure of any committee so established. 1994, c. 27, s. 120 (1).

8The question to be answered, is whether a decision by the Minister under section 9(3.1) is subject to an appeal before the Board, like decisions of health and safety inspectors. The Board's power to consider an appeal from a decision of an inspector derives from section 61(1) of the Act:

61. (1) Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order. 1998, c. 8, s. 57 (1).

9The Ministry says that the "order" being referred to is only that of an inspector. The applicant says it includes a decision of the Minister. Section 61(5) of the Act defines what an order means:

(5) In this section, an order of an inspector under this Act or the regulations includes any order or decision made or given or the imposition of any terms or conditions therein by an inspector under the authority of this Act or the regulations or the refusal to make an order or decision by an inspector. R.S.O. 1990, c. O.1, s. 61 (5).

The applicant says the reference to "decision" in this provision includes a decision by the Minister under section 9(3.1.) of the Act.

10The applicant contends that the Minister did not exercise his powers under section 9(3.1). That was done by a delegate of the Minister, someone in the position of an inspector. Since the decision was therefore made by an inspector, it is subject to appeal under section 61.

11I do not agree with the applicant's construction of the relevant provisions. An order, which is appealable to the Board, is one made by an inspector. The reference to "decision" in section 61(5) is to a decision by an inspector. The Minister is not an inspector. Both are defined in section 1 of the Act, and they plainly do not refer to each other:

"inspector" means an inspector appointed for the purposes of this Act and includes a Director;

"Minister" means the Minister of Labour;

These definitions make clear that the reference in section 61 to an inspector is not a reference to the Minister.

12Inspectors' powers are set out in section 54 of the Act. As the Ministry suggests, those powers are primarily to enforce the many duties and responsibilities which parties have under the Act. Inspectors have some discretionary powers, such as under section 45 and 47, but the discretion they have is distinct from that of the Minister. The Minister's orders, such as under section 9(3.1), are typically to grant exceptions to the general duties and obligations of parties under the Act. The Minister may permit a variation from the strict provisions of the Act. His decisions are not appealable under the Act. As the Ministry submits, an inspector generally enforces regulatory standards and, if the inspector errs, the Board may alter his or her order or decision. In contrast, the Minister is empowered by the Act to ameliorate the strict obligations of the Act. In exercising his discretion to do so, (or not, as in this case), the Minister's decision is not subject to an appeal to the Board.

13If the Minister chooses to delegate his powers under section 5 of the Act, as he may, to any officer of the Ministry, the powers exercised by that person in the delegated capacity remain the Minister's powers. If the delegate happens to be an inspector, that does not alter what he or she does. The action takes remains that of the Minister and does not become that of an inspector just because the person carrying it out happens to be an inspector.

14In the circumstances, the Board does not have jurisdiction to review the exercise of the Minister's discretion under section 9(3.1). Both applications are therefore dismissed.

"Christopher J. Albertyn"

for the Board