The Ontario Labour Relations Board has deferred to the opinion
of a Ministry of Labour inspector over that of an engineer in
refusing to suspend a compliance order issued by
the inspector under the Occupational Health and Safety
The OLRB held that, where an employer seeks to have a compliance
order suspended pending an appeal of that order, the OLRB "is
reluctant to second-guess the judgement of an Inspector who has had
the opportunity to attend at the site and observe the operation
with a focus on safety."
The employer was using a "fabricated attachment" on a
Komatsu excavator to hoist pre-case concrete panels from a truck
onto a bridge deck. The Ministry of Labour inspector held
that the excavator was not intended to hoist materials in this
manner, and ordered that the practice stop.
The employer appealed the inspector's order and asked to
have it suspended pending the appeal. The employer relied on
the written opinion of a professional engineer who determined that
there was an adequate factor of safety against tipping of the
excavator. The Ministry argued that a crane should be used
instead of an excavator.
The OLRB stated that the Ministry had raised a number of issues
regarding the professional engineer's analysis and the
methodology used to test the fabricated attachment, and that
those issues were significant enough to raise questions about
worker safety, particularly where the employer did not call any
witnesses on its suspension request but simply made
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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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