Should Appeals of Safety Compliance Orders be Stayed While Charges are Outstanding?

A recent Ontario Labour Relations Board decision suggests that employers’ appeals of Ministry of Labour compliance orders should not proceed while Occupational Health and Safety Act charges are outstanding.

The case arises from the Christmas Eve, 2009 scaffold collapse which resulted in the death of four workers. We recently reported on the fines against Metron Construction, the employer, and its director.  The Ministry of Labour has also charged Swing N’ Scaff Inc., the supplier of the scaffold that failed, under the Occupational Health and Safety Act.  The charges are outstanding.

Swing N’ Scaff appealed Ministry of Labour compliance orders against it after the accident.  The Ministry of Labour’s counsel advised the OLRB that the compliance order appeal raised issues that were also raised in the prosecution.

The Ministry of Labour argued that the compliance order appeal at the OLRB should be stayed while the charges remained outstanding, in order:

“(a) to ensure that the appeal process does not hinder or delay the prosecutions; (b) to ensure that the applicant and the director are not put into a position in which they provide prejudicial information to the Ministry during the appeal process that may impact upon their right to make full answer and defence at their trial; (c) to ensure that potential trial witnesses are not examined or cross-examined on material issues at the appeal hearing before the trial takes place; (d) to allow the Vice-Chair the potential benefit of court rulings concerning issues about suspended scaffolds, and to prevent the possibility of rulings from a Vice-Chair on matters that may arise before the court in the trial; (e) because the applicant is not represented by counsel in these appeals but is represented at trial; and (f) to ensure that inconsistent judgments on the issues in dispute are not rendered.”

The OLRB gave Swing N’ Staff time to file submissions on the issue. In a decision dated September 5, 2012, the OLRB decided:

“For the reasons identified by counsel for the Ministry that are described at paragraph six [quoted above] of my previous decision, I am of the view that it is appropriate to adjourn these proceedings.  The reasons underlying the adjournment request are compelling, and the applicant has not written to oppose the request.”

Employers faced with workplace accidents and Ministry compliance orders that could result in charges, should take note of this decision.  Although a failure to appeal compliance orders could be argued to be an admission of a safety violation, proceeding with the appeal could jeopardize the employer’s position in the related Occupational Health and Safety Act charges.  Advice from a health and safety lawyer is recommended in these complex situations.

Swing N Scaff Inc. v. James, 2012 CanLII 51106 (ON LRB) (September 5, 2012, and Swing N Scaff Inc v James, 2012 CanLII 47333 (ON LRB) (August 10, 2012)

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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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