November 10, 2004 by Israel Foulon LLP
Question: I am an employer who operates a textile plant in Windsor, Ont. Recently, an Occupational Health and Safety inspector came to our plant unannounced. After completing his tour he provided me with an order to fix one of my machines immediately. In his opinion the machine was unsafe and could not be used again until it was repaired. This machine, however, is only five years old and I believe that it was, and still is, safe for use by my employees. Is there anything that I can do in order to appeal this decision and to continue using the device?
Answer: Under each provincial occupational health and safety scheme there is an appeal mechanism whereby a party may attempt to overturn an inspector’s order. In Ontario , s. 61 of the Occupational Health and Safety Act permits an employer, constructor, licensee, worker or trade union to appeal the order of an inspector.
It is important to note, however, that this appeal must come within 30 days of the making of the order. These appeals are made to the Ontario Labour Relations Board.
After the board is notified of the appeal it can allow a labour relations officer to look into the appeal.
This officer then reports to the board and attempts to settle the appeal. If there is no settlement the board will come to a decision.
The legislation makes it clear that the decision of the board is final. Despite this language, however, it would still be possible to judicially review the board’s decision in court.
It should also be noted that each province has different rules as to where the appeal will be heard.
In Alberta , for example, the appeal goes to a specialized tribunal or official within the health and safety bureaucracy and then to the courts on questions of law or jurisdiction.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or pi@qtw38575.mywhc.ca. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today