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Faced with Costly Safety Compliance Orders? “Competitive Disadvantage” Argument Rejected by OLRB

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Employers faced with costly Ministry of Labour compliance orders, that have not been issued to competitors, are often concerned that the orders would put them at competitive disadvantage.

In a recent decision, the Ontario Labour Relations Board has rejected an employer’s argument that a Ministry ergonomist’s order should be suspended because of competitive disadvantage.

The Ministry ergonomist accompanied a Steam Whistle Brewing driver on a delivery route and observed him unloading product, including lowering a 50 kg keg down a flight of stairs, walking backwards and partially supporting the key with his thighs.

The ergonomist issued a number of compliance orders to the employer that it appears to have believed would hamper its ability to deliver product efficiently.

Steam Whistle argued that the compliance orders would put it at competitive disadvantage compared with other craft breweries who were not subject to similar compliance orders. 

The OLRB stated,

“To my mind, the question of competitive disadvantage ought not to be a factor in assessing prejudice for the purpose of a suspension request.  In almost every situation in which an Inspector makes an Order under the Act, the recipient of that Order will be in the position to assert that one of its competitors is now more advantaged than it, and therefore has the benefit of a competitive advantage.  Accordingly, if competitive disadvantage were to be a significant factor in a suspension request application, every Order made by an Inspector would be subject to suspension as a matter of course.  In any event, it has not been asserted by Steam Whistle that the cost of complying with the Orders is so significant that it would make a meaningful difference in its ability to compete with its competitors.”

The moral of this case is likely that employers should take proactive steps to avoid issues arising that could lead to costly Ministry compliance orders. The “competitive disadvantage” argument, without more, will not succeed.

Johnson v Steam Whistle Brewing, 2012 CanLII 47332 (ON LRB)