Can An Employer Appeal An Inspector's Order To Produce Documents? Not If The Order Is Called A "Requirement"

• Published date: 12 July 2023
• Subject Matter: Employment and HR, Health & Safety, Employee Rights/ Labour Relations
• Law Firm: Stringer LLP
• Author: Mr Ryan Conlin, Jeremy Schwartz and Haadi Malik

One of the more legally confusing aspects of the appeal regime under the Occupational Health and Safety Act ("OHSA") is the difference between a "order" and a "requirement" of a Ministry of Labour, Immigration, Training and Skills Development ("Ministry") Inspector.

An order is typically issued in a "Field Visit Report" provided by the Inspector and is specifically characterized as an Order which the employer (and certain other parties) have the right to appeal to the Ontario Labour Relations Board ("Board"). A "requirement" is not formally issued as an Order and is often listed in the narrative of a Field Visit Report as a directive for the employer to do certain specific things.

In two recent cases before the Board, Cementation Canada Inc., Applicant v A Director under the Occupational Health and Safety Act, 2023 CanLII 10016 ("Cementation Canada") and Miller Group Kakabeka MDMC, Applicant v A Director under the Occupational Health and Safety Act, 2023 CanLII 34317 ("Miller"), the Board directly confronted the issue of whether it had the jurisdiction to hear an appeal of a "requirement" issued by an Inspector to produce certain documentation in connection with a Ministry investigation.

Cementation Canada

In the Cementation Canada case, the Employer applied to the Board to have a requirement in an Inspector's Field Visit Report to produce documents quashed, rescinded, and set aside. The Employer pointed to section 61(5) of the OHSA which essentially states that an appeal lies from any order or "decision" made by an Inspector under auspices of the legislation.

It was argued that the requirement at issue was clearly a decision made under the OHSA and was thus subject to appeal. The Board's attention was directed to specific cases where an employer's appeal of similar requirements proceeded on the merits without a jurisdictional challenge (see, for example, The Corporation of the Municipality of Chatham-Kent v A Director under the Occupational Health and Safety Act, 2017 CanLII 74130 (ON LRB), Aecon Industrial, a Division of Aecon Construction Group Inc., 2016 CanLII 67511 (ON LRB); Hydro One Networks Inc. v. Power Workers' Union, 2013 CarswellOnt 16276.)

In response, the Ministry argued that pursuant to the Board's jurisprudence, a requirement is not an order or decision of an inspector under the Act and, therefore, there was no jurisdiction under the OHSA for the Board to hear the application. It was argued that a decision arises only after an Inspector...