Despite Possible OHSA Charges, Employer’s Appeal Of MOL Inspector’s Order May Proceed

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An employer’s appeal of a Ministry of Labour inspector’s compliance orders may proceed, despite the inspector’s ongoing investigation into possible charges, the Ontario Labour Relations Board has ruled.

The inspector’s compliance orders dealt with the wearing of personal protective equipment and the training of workers regarding hazards associated with moving vehicles or equipment.  The employer appealed the orders to the OLRB.  At the same time, the inspector continued an investigation that could result in potential charges against the employer under the Occupational Health and Safety Act.

Interestingly, it was the Ministry of Labour – not the employer – that asked the OLRB to adjourn the employer’s appeal until the inspector’s investigation had been completed.  The Ministry argued that it would not be proper to address issues in the OLRB’s pre-hearing in the employer’s appeal, or in the course of the appeal itself, which may involve other workplace parties such as the union and a particular worker who were participating in the inspector’s investigation into possible charges.

The OLRB rejected the Ministry’s request, stating that the employer, which was represented by counsel, wished to proceed with the appeal and had not yet been charged with offences under the Occupational Health and Safety Act.  Further, at least at the pre-hearing stage of the employer’s OLRB appeal, the employer would not be required to provide any information to the Ministry against its will which could prejudice the employer if it were charged under the Occupational Health and Safety Act after the inspector completed the investigation.

Lastly, the OLRB stated that any concerns about prejudice would be more persuasively raised by an employer whose interests were potentially at risk, rather than by the Ministry.

In the result, the employer was permitted to proceed with its appeal of the Ministry inspector’s compliance orders.  The Ministry’s request for reconsideration of the OLRB’s decision was also dismissed.

This is a welcome decision that permits employers to challenge Ministry inspectors’ compliance orders without having to wait until the inspector has completed his or her investigation.

Trisan Construction Inc v Labourers International Union of North America, Local 183, 2012 CanLII 87260 (ON LRB), request for reconsideration denied.