Entire vehicle a 'workplace' under OHSA even when only transporting employees, says board

Hydro employees used equipment such as aerial lift bucket while in the truck

In a decision that affirms a broad definition of "workplace" under the Ontario Occupational Health and Safety Act, the Ontario Labour Relations Board has ruled that hydro trucks, including their aerial lift buckets, were "workplaces" under that act even while they were simply being used to transport employees.

The trucks were on the way to work locations when they were required to enter a Ministry of Transportation inspection area beside a highway. Interestingly, a Ministry of Labour inspector was also present at the inspection site and laid certain orders under the Occupational Health and Safety Act in relation to the trucks. The orders required the employer to provide certain documentation, and also dealt with certain safety concerns relating to the operation of the step system used to access the aerial lift bucket.

Hydro One argued that in order for a Ministry of Labour inspector to have jurisdiction to issue an order under the Occupational Health and Safety Act, the order must be issued at the workplace where the equipment (here, the aerial lift bucket apparatus) is to be used.  Hydro One argued that aerial lift bucket apparatus was not a "workplace" when the truck was being used solely to tranport employees, although the rest of the truck would be a “workplace” during the transportation.

The OLRB stated:

“The equipment (aerial lift bucket apparatus) in question is physically incorporated into the vehicle; it is equipment that is and was en route to being used by the very same employee operating the vehicle in question. If the employer’s analysis is accepted, i.e. that an order (request) must issue at the workplace and if that did not happen in the instant case, the employer acknowledged that an inspector faced with an obvious safety deficit could follow the vehicle in question to the workplace where the derelict equipment was to be used and properly issue an order there. I am unable to see how requiring an inspector having full knowledge of facts otherwise warranting the issuance of an order to follow the equipment in question to the workplace before issuing an order is a sensible policy result. It is difficult to see how the spectre of inspectors, whether by stealth or in ‘hot pursuit’, following derelict equipment along highways and thoroughfares and unable to intervene until the inspector, the equipment and the employee in question are all at the 'proper' workplace is consistent with the rational administration and effective enforcement of the legislated workplace safety scheme.

For more information see:

• Hydro One Networks Inc v Thisdelle, 2013 CarswellOnt 4007 (Ont. L.R.B.).

Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.

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