1872-01-HS Vijah Prashad and Excel Employment Tempro Inc., Applicants v. Joseph Zaher, Inspector and Ministry of Labour, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; October 24, 2001
This is an application under section 61(7) of the Occupational Health and Safety Act, R. S. O. 1990, c. 0. 1, as amended (the “Act”) for suspension of the order issued by Inspector Joseph Zaher (the “Inspector”) in Field Visit No. 953089 issued on September 7, 2001 (“the Order”) pending the disposition of the appeal from the Order. This application was filed with the Board on October 5, 2001 the same day the appeal of that Order was filed with the Board (Board File No. 1871-01-HS). As the appeal was filed less than thirty days after the making of the Order, it was made within the time prescribed by section 61(1) of the Act and therefore this application is properly before the Board.
Vijah Prashad is, according to the application, the majority shareholder of Excel Employment Tempro Inc. (“Excel”). The Order directs Excel to “instruct and train all workers placed at clients’ workplaces on health and safety legislation and hazards associated with all tasks which they do or perform”. The Order does not require Mr. Prashad to do anything. The transmittal letter from counsel for Excel indicates that the appeal is being made by Excel although the application and the appeal documents refer only to Mr. Prashad as the applicant and appellant. Under the circumstances, since Mr. Prashad is referred to as the owner in those documents, the Board is prepared to proceed with this matter as if Excel, who is the person named in the Order, made the application together with Mr. Prashad.
The Order required Excel to comply with it by October 15, 2001. It appears from the material filed by the Inspector that a training supplier retained by Excel had sought on behalf of Excel and obtained an extension of time to comply with the Order to October 31, 2001. Counsel for Excel, shortly before filing the appeal and this application, contacted the Inspector and confirmed an extension of the date for compliance.
The Board in Upper Grand District School Board, [2000] OLRB Rep. Nov./Dec. 1253 set out the principles used by the Board when determining whether to suspend the operation of an order pending the disposition of the appeal. The Board wrote at page 1255:
Those principles have been set out in a number of decisions, including R. J. Dungey and Sons Ltd., [1999] OLRB Rep. Jan./Feb. 82 where the Board at page 86, paragraph 13 wrote:
Adjudicators previously and the Board more recently adopted an approach that tries to balance the different interests of the parties affected by an order. That balancing of interests requires the Board to consider many factors including principally the following three factors:
(i) whether the suspension of the order would endanger worker safety,
(ii) the degree of prejudice to the employer, and
(iii) whether there is a string prima facie case for a successful appeal of the order.
See the decision of Adjudicator Robert Herman in General Motors of Canada Limited, decision dated June 2, 1997, unreported, Board File No. 3666-96-HS which was recently adopted by the Board in The Great Atlantic and Pacific Company of Canada Ltd., Board File No. 2118-98-HS, unreported, decision dated November 24, 1998, (suspension of order granted) and in The Great Atlantic and Pacific Company of Canada Ltd., Board File No. 3025-98-HS, unreported decision dated December 23, 1998 (suspension of order dismissed).
In Regional Municipality of Hamilton-Wentworth, [1998] OLRB Rep. July/Aug. 709 the Board, in dismissing an application to suspend an inspector’s order pending the appeal, commented at paragraph 6: “In the absence of some persuasive reason to interfere with that order pending the hearing of the appeal on the merits, the original order ought not to be suspended.” A similar approach to an inspector’s decision was also adopted by the Board in R. J. Dungey and Sons Ltd., supra, 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 not be suspended prior to the hearing on the merits of the appeal unless an appellant demonstrates compelling grounds for the Board to do so.
In my view, if the appellant cannot demonstrate a strong “prima facie” case on the merits of the appeal, then it is not necessary to consider either the degree of prejudice to the appellant or whether the suspension would endanger worker safety.
The Inspector and Ministry of Labour oppose the application. Mr. Prashad submits that the health and safety of workers would be assured if the Order were suspended because “there is an up and running computer work station that the temporary workers are using to educate the temporary workers in health and safety issues before the said workers are sent to specific job placements.” In addition, he submits that Excel “has written assurances from the companies that employ the temporary workers that health and safety issues and policies are in place.” There is nothing that suggests that Excel has undertaken specific instruction and training of the temporary workers it assigns to the workplaces operated by third parties with respect to the safety issues that might arise at those workplaces.
Mr. Prashad submits in relation to the merits of the appeal (addendum C and addendum D to the application) that it is more likely that he will succeed on the appeal because:
We believe that Excel Employment Tempro Inc. has very good grounds to succeed in said appeal. The inspector misapprehended the evidence provided to him by Mr. Prashad on September 7, 2001.
Mr. Prashad also submits that there are good reasons to vary the Inspector’s Order and describes those reasons as follows:
The reasons that the Inspector’s Order should be varied at this time is that there is a system already in place that assuages any fears the Ontario Ministry of Labour may have with respect to the training of temporary workers in the are [sic] of occupational health and safety.
Mr. Prashad than attached as addendum E to the application a hard copy of a computer program that is being used for safety training.
The applicants have not indicated what measures have been taken to ensure that the workers Excel hires and assigns to the workplaces of its clients actually undergo health and safety training. It appears from the applicants’ material that workers employed by Excel have access to a computer terminal that has a health and safety training program. Mr. Prashad says nothing in his application about what steps Excel takes, if any, to ensure that workers actually undergo the training opportunity it provides through that computer terminal. There is nothing in the applicants’ material that indicates what steps, if any, Excel has taken to assess the health and safety risks that might exist in the locations where it sends its workers and what training it does, if any, to deal with the risks that arise in the workplaces of its clients.
Finally, the applicants’ entire basis for submitting that they will succeed in their appeal of the Inspector’s order is that the Inspector “misapprehended the evidence” provided by Mr. Prashad to the Inspector. There is nothing to indicate what evidence Mr. Prashad provided to the Inspector nor how the Inspector misapprehended what was told to him. Furthermore, the applicants submit that Excel “has very good grounds to succeed” in the appeal but provides nothing to indicate what those grounds are, other than the reference to the misapprehension of evidence.
The applicants have failed to persuade me that the operation of the Order should be suspended pending the disposition of the appeal in Board File No. 1871-01-HS.
This application for suspension of the Order is dismissed.
“Harry Freedman”
for the Board