A mining company has won a lengthy dispute with the Ontario Ministry of Labour after satisfying the Ontario Labour Relations Board that the applicable “industry standard” was not appropriate in the case at hand.

The issue in the case was whether the Ontario Occupational Health and Safety Act prohibited the employer from “skipping” (bringing mined ore or muck to the surface using a hoist – like an elevator system – after it has been mined) while shaft inspections were being performed.  A Ministry of Labour inspector had written compliance orders requiring the company to refrain from skipping while inspecting the shaft.

The Ministry argued that the industry standard is to refrain from skipping while inspecting the shaft.  The company showed, however, that this standard should not apply because, in particular, the loading pocket (where material is loaded for transportation to the surface) is at the base of the shaft, below the bottom point at which shaft inspectors would travel when on the inspection deck of the main cage.  Thus, even if the loading pocket malfunctioned, it would not present a hazard to the shaft inspectors because they would be above it. Also, the risk of a falling object injuring the shaft inspectors was very remote, given the precautions already in place.

Interestingly, the Ministry of Labour argued that if the OLRB allowed the appeal and set aside the inspector’s orders, the OLRB would be “playing Russian roulette with worker’s  lives”. The OLRB answered that assertion as follows:

“The Board takes the health and safety of the workers of this province, and the miners at NRS, extremely seriously. However, on the facts of this case the evidence establishes that skipping does not create any reasonably foreseeable increased risk of harm to the inspection crew. It is not enough for the Director to rely on gut instinct to establish the need for an order; the basis for an order must be grounded in evidence and law, and here those grounds are not made out.”

As such, the company’s appeals were allowed and the inspector’s orders were set aside.

Glencore Canada Corporation v. Sudbury Mine, 2015 CanLII 85298 (ON LRB)