A safety officer's compliance order has been suspended where
the cost of compliance would be so high that it could cause serious
economic harm to the company.
The company performed stevedoring and terminal handling of
containers at the Port of Montreal. It employed
"checkers" who used Toyota Echo and Yaris cars to move
about the Port coordinating work. A federal health and safety
officer decided that the lighting levels of two terminals at the
Port were below the prescribed standards. She issued a direction
requiring the employer to end the violation and increase lighting
The company appealed and applied for a suspension of the direction.
The company presented evidence that in order to comply with the
direction, it would need to install 10 new "lighting
towers" at a total cost of at least $2 million. The company
also noted that it was impossible to install new lampposts by the
compliance deadline because it was winter and the ground was
The federal Occupational Health and Safety Tribunal Canada
decided that the direction should be suspended pending the outcome
of the appeal. Firstly, there was a serious legal issue as to
whether the direction was legally correct. Secondly, the company
would suffer serious harm if the direction was not suspended.
First, it appeared impossible to comply with the direction, by the
deadline, given the weather conditions and engineering work
involved. The company could suffer serious economic harm that could
threaten the company's viability, given the cost of compliance.
Further, the inspector took 9 months, after her inspection, to
issue the direction, suggesting that the lighting levels did not
pose a serious hazard. Thirdly, the company was willing to put
additional safety measures in place – including painting the
cars a different colour, installing an LED light at the tip of the
flag on the car, and adding lights to the checkers' safety
vests – that adequately protected the checkers.
The Tribunal agreed to suspend the direction on the condition
that the company takes action, immediately, to put into place the
additional safety measures.
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