OLRB affirms “Workplace” to be defined broadly

In a
recent decision, the Ontario Labour Relations Board (OLRB) has affirmed the
proposition that the definition of “workplace” under the Occupational Health and Safety Act (OHSA) should be read broadly.

In Hydro One Networks Inc. v. Power Workers
the OLRB was left to grapple with a dispute regarding the jurisdiction of a
Ministry of Labour (MOL) inspector to issue requirements and orders under the
OHSA. In that case, certain Hydro One trucks were en route to work locations. The trucks were required to enter a
Ministry of Transportation (MTO) inspection area. The inspection station was
staffed by an MTO inspector, but an MOL inspector also happened to be present
at the inspection site.

As a
result of her dealings with the Hydro One workers and with the vehicles, the MOL
inspector issued a “requirement” under s. 54(1)(c) of the OHSA requiring that
Hydro One provide certain documentation relating to the vehicles. On a separate
subsequent date the MOL inspector issued an “order” under s. 57(1) of the OHSA requiring
that safety issues regarding the safe operation of the step system and aerial
lift bucket of the trucks be addressed.


Hydro One
fought the inspector’s requirements and order, arguing that because the inspector
issued these directives before the trucks were at the destined work site, the inspector
didn’t have jurisdiction to issue either the requirements or the order. In
other words, Hydro One asserted that the inspector only had jurisdiction at the
workplace where the truck and equipment were meant to be used, and didn’t have
jurisdiction where the trucks were en
to the workplace. While conceding that the trucks could be defined as
a “workplace” under the OHSA, Hydro One argued that the aerial lift bucket
could not be considered a “workplace” when it was not being used and when the
truck was being used merely for the transport of employees.

The union
and the MOL disputed the employer’s proposition that the trucks had to be at
the worksite in order for the MOL Inspector to have jurisdiction, asserting
that there is no statutory requirement that such requirements and orders must
be issued at the workplace.[2]
However, given that the very breadth of the definition of “workplace” under the
OHSA was at issue in this case, the Board did not find it necessary to deal
with this element of the case. Rather, the Board set to the task of dealing
with the concept of “workplace” under the OHSA.

is a defined term under s. 1(1) of the OHSA: 

“workplace” means any land,
premises, location or thing at, upon, in or near which a worker works.   

parties agreed that “workplace” is a fluid concept under the OHSA, one that may
change to accommodate a variety of workplaces. A workplace may be mobile and
both parties agreed that the trucks are a “workplace” under the definition in
the OHSA. The employer, however, sought to advance a nuanced definition of
“workplace”, contending that the vehicles are workplaces when they are being
used to transport workers to and from the worksite, but only insofar as the
vehicles are being used for that purpose. 
The employer argued that the truck, but not the aerial bucket and its
apparatus, is the “workplace.” The employer asserted that the aerial bucket and
its apparatus could only be a “workplace” when in use.  And since they weren’t in use for work issues
when the trucks were at the MTO inspection station, they were not “workplaces”
under the jurisdiction of the MOL inspector at the time the requirements and
order were issued.[3] The
vehicles were workplaces but not their equipment – and therefore, the MOL
inspector didn’t have jurisdiction.

The Board
recognized the absurdity the employer’s position of separating the workplace
into two (i.e. separating the trucks and their equipment) would lead to. It
would require an MOL inspector who was aware of safety concerns with equipment
on employer vehicles to essentially abstain from issuing any requirements or
orders relating to this equipment until it was at the “workplace” where it was
intended to be used. This is to say that the inspector would basically have to
follow the vehicles with the faulty equipment to their destination before the
inspector could make any requirements or orders concerning the flawed
equipment. Putting a stop to this absurdity, the Board ruled that the vehicles and their equipment are one workplace:

There can be no issue of the
appropriate nexus to worker safety in the instant case, the equipment in
question is part of the vehicle that the employee is driving, it is the same
equipment that the same employee is en route to using at the intended location[4]. 

Having regard to the foregoing
and whether or not an order (request) must be issued at the workplace in the
fashion advocated by the employer (a proposition I neither endorse nor reject),
I am satisfied that the instant order and requests were issued at the workplace[5].

is a public welfare statute, which the Ontario Court of Appeal has affirmed
must be given a broad interpretation[6].
In refusing to delineate between a workplace vehicle being used by workers and
the equipment attached to that vehicle, the Board complied with the ONCA’s
judgment and rightly protected the safety of workers and upheld the importance
of public welfare. The Board rejected the crux of the employer’s argument with
this artful dismissal:

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.[7]

As a result, the employer’s appeal of the
jurisdiction of the MOL inspector to issue the requirements and order in
relation to the vehicles and equipment was dismissed.

[1] 2013
CanLII 67867 (ON LRB) [Power Workers
[2] Ibid at para 9.
[3] Ibid at paras 28-31.
[4] Ibid at para 41.
[5] Ibid at para 42.
See R v Timminco Ltd (2001), 54 OR
(3d) 21 (CA) at para 27.
[7] Power Workers Union, Supra 1 at para

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