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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.
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