Inspector’s Opinion Beat Engineer’s in Request to Suspend OHSA Compliance Order

The Ontario Labour Relations Board has deferred to the opinion of a Ministry of Labour inspector over that of an engineer in refusing to suspend a compliance order issued by the inspector under the Occupational Health and Safety Act.

The OLRB held that, where an employer seeks to have a compliance order suspended pending an appeal of that order, the OLRB “is reluctant to second-guess the judgement of an Inspector who has had the opportunity to attend at the site and observe the operation with a focus on safety.”

The employer was using a “fabricated attachment” on a Komatsu excavator to hoist pre-case concrete panels from a truck onto a bridge deck.  The Ministry of Labour inspector held that the excavator was not intended to hoist materials in this manner, and ordered that the practice stop.

The employer appealed the inspector’s order and asked to have it suspended pending the appeal.  The employer relied on the written opinion of a professional engineer who determined that there was an adequate factor of safety against tipping of the excavator.  The Ministry argued that a crane should be used instead of an excavator.

The OLRB stated that the Ministry had raised a number of issues regarding the professional engineer’s analysis and the methodology used to test the fabricated attachment, and that those issues were significant enough to raise questions about worker safety, particularly where the employer did not call any witnesses on its suspension request but simply made submissions.

Toronto Zenith Contracting Ltd. v. Health and Safety Act, 2013 CanLII 57229 (ON LRB)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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