Companies should consider whether to appeal before complying with order
Question: What proactive steps can an employer take after a health and safety inspector has issued an order?
Answer: Many employers do not appreciate the negative impact an order can have on the employer’s health and safety record. Accordingly, when an order is issued, an employer usually attempts to comply as soon as possible, sometimes without considering whether it is appropriate to appeal the order. Often an appeal is an appropriate route. However, in order to reach this decision the employer has to be in a position to appreciate the ramifications of both the order and the appeal.
The impact of an order
The Occupational Health and Safety Act gives a Ministry of Labour inspector the ability to enter a workplace to conduct an inspection and issue an order or charge for a breach of the act.
An order may require disclosure of certain information or documents, require work to be stopped or changes to be made to a machine, guard, production process, or to the use of equipment or even policies and procedures.
An order does not carry an immediate monetary penalty. However, most employers are surprised to learn an order (even one that has been complied with) may impact the employer’s health and safety record. For example, if an employer is issued an order related to fall protection and is later charged for failure to ensure a worker has been trained in fall protection, the Crown may attempt to rely on the previous order to justify seeking a harsher penalty to resolve the charge.
Similarly, if an employer is charged for a breach of the act and brings a “due diligence” defence, the Crown may attempt to rely on previous unrelated orders to suggest to the court the employer does not take health and safety as seriously as it should.
Appealing an order
Any “employer, constructor, licensee, owner, worker or trade union which considers (itself) aggrieved may initiate an appeal” to the Ontario Labour Relations Board within 30 days of receiving the order. The act does not require an order to have been made before an appeal can be initiated. An appeal can be initiated on the grounds an order was not laid. For example, if a worker calls the Ministry of Labour to complain about heat in the workplace and the inspector attends the workplace but does not find a health and safety issue, the worker or the trade union may appeal the inspector’s decision. The process for the appeal is the same regardless whether an order has been issued.
To launch an appeal, the board requires specific forms to be completed, served and filed. The board will then schedule mediation and if no resolution is reached, a consultation or hearing.
During the time it takes for the appeal to work its way through the board, the order is still in effect. However, the act provides the board discretion to “suspend the operation of the order.” An application to suspend the order must be served on all parties potentially affected, including the Inspector and filed with the board.
When deciding whether to suspend an order, the board will consider the following factors:
•whether the suspension would endanger workers
•any prejudice the employer is suffering as a result of the order
•whether there is a strong prima facie case for the success of the appeal on its merits.
In a case where there is a health and safety risk associated with the order, the board will rarely suspend an order pending the appeal. This means the employer is still required to comply with the order during the appeal process.
However, where there is no health and safety risk or the risk is outweighed by other factors, the board may grant a suspension pending the appeal. For example, the board may suspend an order to produce documents if the appeal challenges whether a request for documents is proper. Similarly, the board may suspend an order where the logistics, cost and impact of compliance are too significant and possibly unnecessary.
Regardless whether the board suspends the order pending appeal, the board will ultimately consider the merits of the appeal. The board can then affirm the order, rescind the order, amend the order or issue a new order. The decision of the board is final, subject only to judicial review.
Another important consideration: Was the ‘inspection’ really an ‘investigation’?
In addition to considering whether an order may be appealed, an employer should consider whether the inspection was really an investigation. Much has been written about the distinction between the two, particularly because the power of inspectors varies greatly depending whether they are inspecting or investigating. For example, if investigating, the inspector requires a warrant to search or seize documents. The same is not true of an inspection. The parameters of this article do not allow us to address these issues fully. However, at the very least employers should know, as a general rule, an inspector is conducting an investigation if the inspector has “reasonable grounds to believe an offence has been or is being committed.”
Practical tips
Employers can, and should, take control of all aspects of health and safety to ensure a safe workplace and manage or limit potential liability. With respect to the latter, when faced with an order from an inspector, an employer should consider the following questions:
•What has the inspector ordered the employer to do or not to do?
•Compare the language of the order to the language of the act: What does the act say relative to the order? Has the inspector properly referenced the act? Has the inspector ordered the employer to do more than what is required in the act?
•Compare the order to the workplace practice: Does the order consider current procedures and practices? Is the workplace already in compliance?
•Consider previous inspector visits: Has the inspector previously considered or commented on issues referenced in the order? Has the inspector previously suggested the workplace’s procedures and practices were sufficient? Has the inspector previously made suggestions that the workplace complied with, only to now order something else?
•Consider the cost and necessity of the order: Is the cost of compliance prohibitive? Is it possible the order is not necessary given the workplace’s practices and experience? If so, is it worth appealing the order prior to compliance?
•What is the appeal deadline?
Mark in your calendar 30 days after the order is made. While an employer has some time to consider whether it wishes to appeal an Inspector’s order, enough time should be left to complete the necessary forms and/or consult legal counsel.
Carissa Tanzola is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. Carissa can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 hours) or by visiting www.sherrardkuzz.com.
