Employers appealing Ontario Ministry of Labour compliance orders under the Occupational Health and Safety Act are entitled to notes made and photographs taken by the MOL inspector during his or her site visits, the Ontario Labour Relations Board has ruled.
Employers charged with offences under the OHSA are used to obtaining full “production” of the MOL’s file; now employers facing compliance orders are entitled to a level of documentary production from the MOL.
The appeal in question deals with whether Dollarama must ensure that workers in the receiving area and handling stocks in the stock room of its stores, wear “safety foot protection”, or whether it was sufficient for Dollarama to require only workers operating a pump jack to wear safety toe caps.
Dollarama appealed the MOL inspector’s compliance order. Dollarama then asked the OLRB to order the MOL to provide all notes made and photographs taken by the inspector during site visits, so that Dollarama could review and possibly use those notes and photographs to challenge the compliance order.
The MOL opposed the request for the inspector’s notes and photographs, arguing that because the OHSA provides that inspectors are not “compellable” as witnesses, inspectors cannot be compelled to produce their notes.
The OLRB disagreed with with MOL, holding that non-compellability of an inspector as a witness does not mean that the inspector can withhold his or her notes. Dollarama was entitled to the notes and photographs, as part of Dollarama’s entitlement to pre-hearing production of documents from the MOL.
This interesting decision provides another arrow in the quiver of employers appealing MOL orders. By requesting – and obtaining – the MOL inspector’s notes and photographs, the employer may be able to show weaknesses in the MOL’s case, thereby strengthening the employer’s argument that the compliance order should be set aside.
Dollarama v. Marcelo, http://canlii.ca/en/on/onlrb/doc/2012/2012canlii12602/2012canlii12602.html