[author: Adrian Miedema]
A Ministry of Labour inspector’s compliance order under the Ontario Occupational Health and Safety Act should not be suspended even though the order only restated the employer’s obligations under the Act, the Ontario Labour Relations Board has ruled. However, the employer may have “lost the battle but won the war” if it can later prove that the inspector’s order was based on an incorrect factual assumption.
The Ministry of Labour inspector had ordered the employer, which operated a restaurant, to provide “permanent platforms . . . with access by a fixed, (a) stair; or (b) access ladder” where frequent access was required to “equipment elevated above or located below floor level”. The equipment in question was a mezzanine above a freezer. That order simply restated the language of Regulation 851 under the Occupational Health and Safety Act.
The Ontario Labour Relations Board noted that the inspector had not indicated in writing that frequent access was required to the mezzanine. In fact, the inspector had not “made a determination” that employees accessed the mezzanine frequently, which determination was required for the employer to be obligated to install the ladder or stairs.
Nevertheless, the OLRB did not suspend the operation of the compliance order, because, “This Board cannot suspend the operation of the Act or its regulations.” The OLRB essentially left it up to the employer, stating that if the employees were indeed having “frequent access” to the mezzanine, then the employer must provide a stair or access ladder. The employer, which appealed the compliance order, would have the opportunity to later argue to the OLRB that its employees did not have “frequent access” so that neither a ladder nor stairs were required.
This is Pyrrhic victory for the Ministry of Labour, as it effectively permits the employer to not install a fixed ladder or stair if the employer maintains that, factually, employees do not have “frequent access”.
The lesson for employers is that if you receive a “bald” Ministry of Labour compliance order that only restates the Act or regulations but is based on an incorrect factual assumption by the MOL inspector, the employer may elect to decide that it is already in compliance with the order and does not need to make any costly changes. Such decisions should be made carefully, though, because if the facts don’t support the employer’s position, the inspector may reattend and write a more specific order or, worse, lay charges for violation of the earlier order.
Moxie’s Grill and Bar v. Thompson