Appealing Ministry of Labour Orders
The Ministry of Labour (MOL) is responsible for enforcement of the Occupational Health & Safety Act (the "Act"). and focuses on hazards, and partnerships directed to promoting and improving health and safety culture and strengthening an organization's Internal Responsibility System. It is built on three pillars: Enforcement, Compliance and Partnership.
The enforcement portion looks at strategies which provide the flexibility to address sector-specific hazards and characteristics, and builds on the previous approach by using a number of triggers or criteria to identify workplaces for MOL proactive inspections. It focuses not only on identifying workplaces with high injury rates and costs, but also on hazards inherent in particular types of business activity and/or workplaces with a history of compliance problems.
The MOL’s proactive inspections, under sec. 55 of the Act, allows for MOL Inspectors to issue Orders for compliance to the respective company. The company is required to comply with the Order, generally, by a specific time-frame. The MOL can, amongst others, issue Orders, as follows:
- Order for Inspections s. 55
- Order for Written Policies s. 55.1
- Order for Workplace Violence Assessment s. 55.2
- Order for Workplace Violence & Harassment Investigations s. 55.3
What do you do when you disagree with an Order or believe that the inspector erred in issuing the Order? A prudent next step is to consult your safety professional to determine if the Order is in fact valid and enforceable. If you still disagree, the next step is an Appeal.
The Appeal
The appeal process is initiated when an employer, constructor, licensee, owner, worker or trade union applies for an Appeal of an Inspector's Order (Field Visit/Report) under Section 61(1) of the Act. The Ontario Labour Relations Board (the Board) is the body responsible for processing and determining appeals. Appeals are determined through a process of consultation or hearing before the Chair or a Vice Chair of the Board.
All appeals must be in writing, made on the applicable Labour Relations Board forms and must be filed, in person, with the Board within thirty (30) calendar days after the making of the order. Unfortunately, the Board has no authority to extend the time limits for commencing your Appeal. The time-lines must be strictly adhered to.
Prior to filing the appeal with the Board, you must deliver your Appeal Package to the responding parties and to any other person or party you have identified as connected or affected by the appeal. Delivery to the Director under the OHSA is made through the Legal Services Branch of the Ministry of Labour.
Once the Board has received the completed the Appeal of Inspector’s Order form, the Board will acknowledge that in writing that it has received the appeal. The Board will then assign a Labour Relations Officer (LRO) to try to mediate the matter, and give the LRO a date by which he/she is expected to report on the status of the mediation (the report date).
If the Labour Relations Officer is unable to successfully mediate the appeal by the report date, the matter will be set down for a consultation or hearing, and a Notice of Consultation or Hearing will be sent to all the identified parties.
The Mediation
The LRO assigned to the appeal will initiate mediation with the goal of assisting the parties settle the appeal and avoid a hearing. The LRO may, in some cases, attempt to settle the matter in a telephone mediation.
During the Mediation, LROs do not decide the case. They do not represent any of the parties in the case, nor do they act as advisors to any of the parties in the case. LROs are professional mediators whose role is to assist the parties settle the issues in dispute, and to encourage open discussion among the parties, LROs consider all discussions within the mediation to be confidential.
During mediation, the LRO may bring the relevant case law to the parties' attention. This is done to help the parties realistically assess their positions. It is not to be considered legal advice; however, if you have not retained a legal representative/paralegal up to this point, you may find this challenging.
If the mediation is unsuccessful, the Appeal will be scheduled by the Board for a consultation or a hearing.
The Consultation
A consultation is different from a hearing and is meant to be more informal and less costly to the parties than a hearing. The Chair or Vice Chair plays a much more active role in a consultation than a hearing. The goal of a consultation is to allow the Chair or Vice Chair to expeditiously focus in on the issues in dispute and make any interim or final orders he/she considers appropriate.
While the precise format of a consultation varies depending on the nature of the case and the approach of the individual adjudicators, there are some universal features. To draw out the necessary facts and arguments, the Chair or Vice Chair may:
- Question the parties and their representatives;
- Express views;
- Define or redefine the issues; and
- Make determinations as to what matters are agreed to or are in dispute.
The Hearing
If the Board schedules a hearing in an Appeal, the hearing will commence before the Board on the date set out in the Notice of Hearing. Parties are entitled to be represented by a lawyer or legal representative (paralegal) at the hearing. The Board will not provide legal representation for you.
The hearing is a legal proceeding to determine your rights and obligations under the Act. If you do not attend, the hearing will proceed without you and your rights and obligations will be determined in your absence.
Each party must file with the Board not later than ten (10) days before the first date set for hearing or consultation two (2) copies of all documents upon which it will be relying in the case. At the same time, each party must deliver copies of those documents to each of the other parties. Documents filed with the Board must be arranged in consecutively numbered pages and must be accompanied by a table of contents describing each document.
You may also have to arrange to have any witnesses you intend to call on to give oral testimony present at the hearing. If you are not sure that a witness will attend, you may request a summons from the Board ordering his/her attendance and ordering him or her to bring any documents which are relevant to the appeal. It is your responsibility to serve the summons before the hearing commences and to ensure that it is served correctly it must be served in person and be accompanied by the required payment for attendance.
If you are the Appellant, you will be asked to make a brief opening statement explaining what you are seeking and why you think the Occupational Health and Safety Inspector was wrong. The Ministry of Labour and the other workplace party will then explain their positions. Unless there is agreement on the facts, evidence will be presented through the testimony of witnesses, and the introduction of relevant documents. In most circumstances, the Appellant's evidence is presented first. Occasionally, the Ministry or the other workplace party will be asked to proceed first.
The Board must decide the case based only on evidence presented at the hearing. You cannot provide additional information after the hearing is completed unless you are requested to do so by the Board. You may not communicate privately with the Board about the case before, during or after the hearing.
The Decision
The Board's decision is final and binding and there is no appeal process from the decision. You may make an application for judicial review of the decision where you feel the decision was patently unreasonable or made outside the Board's jurisdiction. Judicial review applications are heard by the Superior Court of Justice, Divisional Court.
The Board is not responsible for enforcing its decisions. If you encounter difficulties in that regard you should seek assistance from the Ministry of Labour, Occupational Health and Safety Branch. The Board's decisions may be filed with the Superior Court of Justice and are enforceable as orders of that court.
Board hearings are open to the public unless the panel decides that matters involving public security may be disclosed or if it believes that disclosure of financial or personal matters would be damaging to any of the parties. Hearings are not recorded and no transcripts are produced.
The Board issues written decisions, which may include the names of the persons or parties appearing before it. Decisions are available to the public from a variety of sources including the Ontario Workplace Tribunals Library, and over the internet at www.canlii.org, a free legal information database. Some summaries and decisions may be found on the Board’s website under Highlights and Recent Decisions of Interest at www.olrb.gov.on.ca.
Summary
The practical advice to avoiding MOL Orders, and potentially having to participate in the above noted onerous appeals process, is to develop, implement and maintain an effective Health & Safety Program before the MOL attends your workplace. An effective Health & Safety Program considers the specific features of the workplace and incorporates them with the Act and Regulations that are applicable to your workplace with the goal of eliminating workplace hazards.
The first step in identifying, assessing and controlling workplace hazards is to conduct a thorough Health & Safety Program Audit consisting of both the administrative and physical elements of your workplace. The Health & Safety Audit will identify areas of your program that you are having success with, and areas that need improvement. The time for action is now!
Robert Gill, CHRL, CRSP, CHSC, EP, Q.Med
Licensed Paralegal
RMG Consulting Group Inc.
RGPS-Professional Corporation
Rob is a Safety and Human Resources Professional, Licensed Paralegal and Qualified Mediator that owns and manages both an Occupational Health & Safety/Human Resources Consulting business, and Paralegal practice. Rob’s focus is on Occupational Health & Safety audits, programs, training and consulting, Workplace Violence & Harassment Programs/Investigations, and Employment Law matters. Rob can be reached at 905-761-9030 or rgill@rmgconsulting.ca for a complimentary consultation.