In a recent decision Hydro One Networks Inc. v. Thisdelle 2013 CanLii 67867, the Ontario Labour Relations Board (“OLRB”) has upheld the decision of a Ministry of Labour Inspector (“MOL Inspector”) to issue a ticket against a Hydro One transportation and utility vehicle on the basis that the vehicle in and of itself constituted a “workplace” and therefore fell within the jurisdiction of the Occupational Health and Safety Act (“OHSA”). This decision gives a broad definition to “workplace” and no doubt means that other vehicles will fall within the jurisdiction of the OHSA.
In this case, a Hydro One vehicle was carrying employees along a highway to a specific worksite. Once at the worksite, the employees would use the vehicle’s aerial bucket to perform work at the site. While transporting the employees, the vehicle stopped at a Ministry of Transportation Inspection Area. An MOL Inspector happened to be at the site and when she examined the vehicle she issued an Order citing safety concerns with the aerial bucket attached to the vehicle.
Hydro One took exception to the Order on the basis that the MOL Inspector had issued an Order with respect to the aerial bucket even though the vehicle in question was not at the worksite where the work was to be performed and the aerial bucket was not even in use at the time. Hydro One argued that if the aerial bucket was not engaged, then there was insufficient nexus between its use and worker safety to justify the MOL Inspector issuing the Order. Further, Hydro One argued the MOL Inspector has not seen the aerial bucket in use and could therefore not know if it indeed constituted a safety risk.
The OLRB commenced its analysis by noting that “workplace” is a defined word in the OHSA and it should be given a broad definition:
workplace” means any land, premises, location or thing at, upon, in or near which a worker works.
From this starting point, the OLRB held that MOL Inspectors must be given wide latitude in determining whether specific places should be considered a “workplace” for the purposes of the OHSA.
The OLRB then held that while the aerial bucket was not in use, the MOL Inspector could clearly see a safety issue and was therefore within her rights to issue an Order. The OLRB rejected Hydro One’s argument that the MOL Inspector had to see the equipement in use before she could issue an Order:
I am unable to see how requiring an inspector having full knowledge of facts otherwise warranting the issuance of an order to follow the equipment in question to the workplace before issuing an order is a sensible policy result. It is difficult to see how the spectre of inspectors, whether by stealth or in “hot pursuit”, following derelict equipment along highways and thoroughfares and unable to intervene until the inspector, the equipment and the employee in question are all at the “proper” workplace is consistent with the rational administration and effective enforcement of the legislated workplace safety scheme.”
Consequently, the OLRB held that the vehicle constitute a workplace and the MOL Inspector acted within the jurisdiction of the OHSA to issue an Order.
The decision is significant because it broadens the definition of “workplace” to clearly include vehicles and it also confirms a common sense application of the OHSA that where an MOL Inspector see a safety risk, he/she can issue Orders without the obligation to see the equipment in actual use.
Simon Heath LL.B, M.I.R.
Heath Law, Employment Lawyers
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