Employers in many Canadian provinces have often looked to Ministry of Labour inspectors to provide guidance to assist them in complying with their obligations under various occupational health and safety statutes and regulations. Employers often request such advice because they believe that Ministry of Labour inspectors, who visit multiple workplaces and observe many different means of compliance, have useful guidance or recommendations.
But the Ontario Labour Relations Board has confirmed, in Scholastic Book Fairs Canada Inc. v. Aguilar, that employers cannot expect the Ministry of Labour, at least in Ontario, to provide such advice. Ultimately it’s the employer’s responsibility to determine the appropriate means of complying with its legal obligations.
The issue arose in the context of a request for suspension of an order issued by an Ontario Ministry of Labour Inspector on June 28. Scholastic Book Fairs Canada Inc. received an order from the Ministry requiring that it comply with a provision in an occupational health and safety regulation. The regulation requires that materials, articles, or things that are to be lifted, carried, or moved should be lifted, carried, or moved in such a way and with such precautions and safeguards to ensure that there is no danger to workers.
The order required that Scholastic ensure that the wheeled bookcases used for school book fairs were moved in a way and with such precautions and safeguards to ensure that there was no endangerment of any worker. The Ministry inspector noted that the push forces required to move the full wheeled bookcase up the eight-foot ramp straddled to the third, fourth, and fifth stairs were above maximal acceptable push guidelines and were a musculoskeletal disorder hazard.
Concerns with the order
Among other things, Scholastic argued that the order was based on ergonomic thresholds. The problem, it said, was that there are no ergonomic thresholds found in the regulations and, therefore, no objective basis for the inspector’s order. Scholastic also argued that the inspector “refused to identify ways or means for Scholastic to comply with the order” and that the inspector ought to have done so.
Employers must devise means of compliance
The Ontario Labour Relations Board made it clear that the inspector was under no obligation to provide a means of complying with the order. The inspector had clearly identified the circumstances and the way in which she considered Scholastic’s manner of pushing the bookcases up the ramp as being a hazard to worker safety. The Board said that, at that point, the onus was on Scholastic to devise a compliance plan that was most sensible for its particular operations and that addressed the contents of the order.
Significance of the decision
The Board’s decision is noteworthy because it supports the practice of many inspectors in many provinces that refuse to provide guidance or information to employers on means to comply with their orders. Often, inspectors don’t wish to provide this information because of liability concerns in the event that the recommended approach is unsuccessful or leads to other problems.
In addition, such advice could, arguably, preclude inspectors from insisting on other measures being taken to achieve compliance on the basis that the employer has already implemented the inspector’s recommended solution.
The decision also highlights the tension between different employer perspectives. Some employers want to receive advice and assistance in terms of means of complying with orders. In some cases, they don’t have the internal expertise to devise solutions and would welcome advice and input from the government officials. Many other employers, however, don’t want the Ministry to provide recommendations and, indeed, would object to the provision by Ministry inspectors of specifics as to the means of compliance.
Interestingly, the Board decision doesn’t indicate that Ministry inspectors are forbidden from providing compliance advice. It’s clear, however, that employers, at least in Ontario, can’t require or expect that methods of compliance will be provided by inspectors. It remains to be seen whether other Canadian provinces will take a similar approach.
Rosalind is a partner with Fasken Martineau and has been named in Lexpert's The 2014 Guide to the 500 Leading Lawyers in Canada. She is listed in the Best Lawyers in Canada publication for environmental law, in Lexpert as most frequently recommended in the area of environmental law, in 2014 Who's Who Legal in environmental law and in the PLC Cross-Border Environment Handbook. Rosalind is also on the roster of mediators/arbitrators of the Canadian Centre for Environmental Arbitration and Mediation and is certified by the Law Society of Upper Canada as a specialist in environmental law. In the occupational health and safety area, Rosalind has been involved in defending charges, dealing with work refusals, appeals of orders issued by the Ministry of Labour and reprisal complaints. She has extensive experience in advising on reporting requirements, the various roles and responsibilities of workplace parties, director and officer liability for health and safety infractions, various aspects of due diligence, and health and safety audits and assessments.