A mining company has won a lengthy dispute with the Ontario
Ministry of Labour after satisfying the Ontario Labour Relations
Board that the applicable "industry standard" was not
appropriate in the case at hand.
The issue in the case was whether the Ontario Occupational
Health and Safety Act prohibited the employer from
"skipping" (bringing mined ore or muck to the surface
using a hoist – like an elevator system – after it has
been mined) while shaft inspections were being performed. A
Ministry of Labour inspector had written compliance orders
requiring the company to refrain from skipping while inspecting the
The Ministry argued that the industry standard is to refrain
from skipping while inspecting the shaft. The company showed,
however, that this standard should not apply because, in
particular, the loading pocket (where material is loaded for
transportation to the surface) is at the base of the shaft, below
the bottom point at which shaft inspectors would travel when on the
inspection deck of the main cage. Thus, even if the loading
pocket malfunctioned, it would not present a hazard to the shaft
inspectors because they would be above it. Also, the risk of a
falling object injuring the shaft inspectors was very remote, given
the precautions already in place.
Interestingly, the Ministry of Labour argued that if the OLRB
allowed the appeal and set aside the inspector's orders, the
OLRB would be "playing Russian roulette with
worker's lives". The OLRB answered that assertion as
"The Board takes the health
and safety of the workers of this province, and the miners at NRS,
extremely seriously. However, on the facts of this case the
evidence establishes that skipping does not create any reasonably
foreseeable increased risk of harm to the inspection crew. It is
not enough for the Director to rely on gut instinct to establish
the need for an order; the basis for an order must be grounded in
evidence and law, and here those grounds are not made
As such, the company's appeals were allowed and the
inspector's orders were set aside.
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