As we reported earlier this year, courts are being asked with increasing frequency to expand the definition of “workplace” under occupational health and safety legislation.  The Ontario Labour Relations Board was recently asked to take a broad view of the definition of workplace in Hydro One Networks Inc. v. Thisdelle (PDF). The Board did so, and found that hydro trucks, including their aerial lift buckets, were “workplaces” under the Ontario Occupational Health and Safety Act, even when they are being driven by employees from one worksite to another. Backg

Background

The appeal that came before the Ontario Labour Relations Board involved several orders and requirements that had been issued by the Ministry of Labour on three separate occasions to Hydro One.  In all three instances, the same Ministry of Labour inspector was positioned at a Ministry of Transport highway stop, and inspected Hydro One trucks passing through for compliance under the Occupational Health and Safety Act.

The trucks were dual-purpose vehicles in that they provide transportation for employee(s) heading to various locations to perform work involving repair or maintenance on hydro lines. Once the employee(s) arrive at the location where this work is to be performed, they make use of aerial lift buckets that employees use to access specific areas where work is to be performed.

The orders and requirements that were issued by the Ministry of Labour inspector to Hydro One involved such matters as a request for driver certification for operation of the aerial lift buckets attached to the truck, and certain safety concerns relating to operation of the step system used to access the aerial lift bucket.

Jurisdictional Argument

Hydro One argued that, in order for a Ministry of Labour inspector to have jurisdiction under the Occupational Health and Safety Act to issue an order or requirement, the order or requirement must be issued at the very workplace where the equipment (the aerial lift bucket apparatus) is being or is to be used. This is so that the inspector can observe the non-compliance that is a pre-condition to issuing an order under the Occupational Health and Safety Act. Hydro One also argued that the aerial lift bucket apparatus attached to the truck was not a “workplace” when the truck was being used solely to transport employees.

The parties responding to Hydro One’s appeal argued that an order or requirement can be issued at any location and not just a “workplace”. And if that was not the case, the entire truck constituted a “workplace”, defined as “any land, premises, location or thing at, upon, in or near which a worker works”.

Ruling by Ontario Labour Relations Board

The Board ruled that the entire vehicle constituted a “workplace” for the purposes of the Occupational Health and Safety Act. As such, the Ministry of Labour inspector was entitled to issue the orders and requirements to Hydro One at the highway stop. Why?  The equipment in question was physically incorporated into the vehicle and it would not serve the purposes of occupational health and safety legislation to require that an inspector follow the truck to the location where it would be used prior to issuing an order.  The Board stated:

“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.”

The Board further ruled that there was no issue of appropriate nexus to worker safety, another argument raised by Hydro One, because the equipment in question was part of the vehicle that the employee was driving and was the same equipment that the employee was en route to use at the intended location. The Board declined to consider whether it was necessary to issue an order at a “workplace” under the legislation on the basis that the truck was deemed to be a “workplace” in its entirety.

Applicability Across Canada

This decision further expands the definition of “workplace” under Ontario’s Occupational Health and Safety Act, making employers responsible for ensuring that all components of dual-purpose vehicles, even when not in use, are compliant with all applicable safety requirements.

The decision will likely have application in most jurisdictions across Canada given the use and similar definition of “workplace” found in the various occupational health and safety statutes. It is important for employers to consider the far-reaching grasp of the legislation beyond the traditional workplace when determining their obligations.