Employers in many provinces have often looked to Ministry of
Labour inspectors to provide guidance to assist them in complying
with their obligations under various occupational health and safety
statutes and regulations. Employers often request such advice
because they believe that Ministry of Labour inspectors, who visit
multiple workplaces and observe many different means of compliance,
have useful guidance or recommendations. But the Ontario
Labour Relations Board (the "Board") has confirmed, in Scholastic Book Fairs Canada Inc. v.
Aguilar (PDF), that employers cannot
expect the Ministry of Labour, at least in Ontario, to provide such
advice. Ultimately it is the employer's responsibility to
determine the appropriate means of complying with its legal
Facts of the Case
The issue arose in the context of a request for suspension of an
Order issued by an Ontario Ministry of Labour Inspector on June 28,
2012. Scholastic Book Fairs Canada Inc.
("Scholastic") received an Order from the Ministry
requiring that it comply with a provision in an occupational health
and safety Regulation that requires that materials, articles or
things that are to be lifted, carried or moved should be lifted,
carried or moved in such a way and with such precautions and
safeguards to ensure that there is no endangerment of workers.
The Order required that Scholastic ensure that the wheeled
bookcases used for school book fairs were moved with such
precautions and safeguards to ensure that no worker was endangered.
The Ministry Inspector noted that the push forces required to move
the full wheeled bookcase up the eight foot ramp straddled to the
third, fourth and fifth stairs were above maximum push guidelines
and were a musculoskeletal disorder hazard.
Concerns with the Order
Among other things, Scholastic argued that the Order was based
on ergonomic thresholds. The problem, it said, was that there
are no ergonomic thresholds found in the Regulations and,
therefore, no objective basis for the Inspector's
Order. Scholastic also argued that the Inspector "refused
to identify ways or means for Scholastic to comply with the
Order", and that the Inspector ought to have done
Employers Must Devise Means of Compliance
The Board made it clear that the Inspector was under no
obligation to provide a means of complying with the Order. The
Inspector had clearly identified the circumstances and the way in
which she considered Scholastic's manner of pushing the book
cases up the ramp as being a hazard to worker safety. The
Board said that, at that point, the onus was on Scholastic to
devise a compliance plan that was most sensible for its particular
operations and that addressed the contents of the Order.
Significance of the Decision
The Board's decision is noteworthy because it supports the
practice of many inspectors in many provinces that refuse to
provide guidance or information to employers on means to comply
with their orders. Often, inspectors do not wish to provide
this information because of liability concerns in the event that
the recommended approach is unsuccessful or leads to other
problems. In addition, such advice could, arguably, preclude
inspectors from insisting on other measures being taken to achieve
compliance on the basis that the employer has already implemented
the inspector's recommended solution.
The decision also highlights the tension between different
employer perspectives. Some employers want to receive advice
and assistance in terms of means of complying with Orders. In
some cases, they do not have the internal expertise to devise
solutions and would welcome advice and input from the government
officials. However, there are also many employers that do not
want the Ministry to provide recommendations and, indeed, would
object to the provision by Ministry inspectors of specifics as to
the means of compliance.
Interestingly, the Board decision does not indicate that
Ministry inspectors are forbidden from providing compliance
advice. However, it is clear that employers, at least in
Ontario, cannot require, or have an expectation that methods of
compliance will be provided by inspectors. It remains to be
seen whether other provinces will take a similar approach.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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