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Ontario Labour Board rules no jurisdiction in COVID-19 related appeal

The Ontario Relations Labour Board ruled it does not have jurisdiction to hear appeals from several unions related to a guide issued by the Ministry of Education on reopening schools during COVID-19.

In light of the March 2020 school closures due to the pandemic, the Ministry of Education (MOE) issued the Guide to Re-Opening Schools (the Guide) for the 2020/21 school year.

The Ontario Secondary School Teachers’ Federation, the Ontario English Catholic Teachers’ Association, the Elementary Teachers’ Federation of Ontario and L’Association des Enseignantes et des Enseignants Franco-Ontariens (the Unions) alleged that the Guide violated the Occupational Health and Safety Act (OHSA). They requested that a Ministry of Labour (MOL) inspector review the Guide and issue orders to correct alleged deficiencies, specifically regarding implementing minimum standards for class sizes, ventilation, student socialization, face mask usage and busing procedures.

The Unions submitted four appeals under section 61 of the OHSA. In his decision, OLRB Chair Bernard Fishbein, held that in order for the OLRB to have jurisdiction to hear the appeals, after the MOL conducted an investigation an order must have been issued or there must have been refusal to issue an order.

Last year the MOE prepared the Guide without consulting the Unions and released it on June 17, 2020. The MOE noted the Guide was preliminary and not intended to be comprehensive.

Over the next three months, the Unions tried speaking with the MOE to try and persuade them to mandate minimum provincial standards they felt were required to protect teachers and students from COVID-19. The requests included:

  • Develop minimum standards for class sizes, students socialization, busing and ventilation;
  • Increase funding from the government to meet reopening guidelines;
  • Consult with the Provincial Working Group – Health and Safety (PWGHS) on the guidance and resources provided to schools for all school boards’ reopening plans, and;
  • Copy the PWGHS on all health and safety recommendations from the government to school boards.

The MOE did not agree to these requests. On July 30, 2020, the MOE issued a revised version of the Guide and stated the “document constitutes a return to school direction […] approved by the Office of the Chief Medical Officer of Health.” The Unions were still not satisfied with the updated Guide because they felt it did not adequately protect against COVID-19 transmission. They continued to try speaking with the MOE.

On Aug. 13, 2020, the Unions requested an urgent meeting with the Minister of Labour and the Minister of Education in a lengthy letter, which alleged that the Guide did not “take every precaution reasonable in the circumstances to protect teachers and education workers as is required by s. 25(2)(h) of OHSA.” They also requested that an MOL inspector conduct an inspection on whether the Guide complies the government’s OHSA obligations.

The Minister of Labour (the Minister) replied to the letter a few days later, emphasizing that inspections occur based on the facts at each specific workplace and that inspectors would conduct inspections when school resumed in September.

The Minister also ensured inspectors met with school boards to discuss return to work plans. Finally, the Minister offered to schedule a meeting with the Unions and the Chief Prevention Officer (CPO) to discuss further. The Minister’s reply did not state that an inspector would be present at the meeting. The Unions accepted the invitation and made no further mention of their request for inspectors.

On Aug. 24, 2020, the Minister met with the CPO and MOL and Union representatives. There was no inspector at the meeting. The Minister refused to make the orders the Unions requested regarding the alleged deficiencies in the Guide, but ensured the MOL inspectors were visiting school boards to provide training and support for the reopening of schools.

The Unions were disappointed with the meeting, particularly with the absence of an inspector. The CPO invited the Unions to submit their requests in writing and the Unions did so on Aug. 25, 2020.

The Minister responded on Aug. 28, 2020, largely repeating what he said in his previous reply: inspectors can only issue orders on a case-by-case basis and they remain committed to upholding the health and safety of workers.

Feeling they had no other recourse, the Unions submitted these appeals on Aug. 31, 2020. They sought an order for the MOE to comply with their obligations to protect education workers by amending the Guide to include specific minimum standards on class sizes, ventilation, student socialization, face masks and busing protocols. They also sought an order to stop work until the inspector withdraws or cancels the prior order.

The OLRB decided it did not have jurisdiction to hear the appeal, because there had never been an order or a refusal to make an order by an MOL inspector.

The OLRB reiterated the principle from Dunsmuir v New Brunswick that statutory tribunals such as the Labour Board get their jurisdiction from the assigning statute. Section 61(1) of the OHSA gives the OLRB jurisdiction to hear appeals from orders of an inspector. Section 61(5) clarifies the definition of an order to mean inspector-issued orders and refusals to make orders by inspectors.

There was no dispute that there was not an order issued by an inspector here – the question was whether there had been a refusal to issue an order by an inspector. The OLRB decided there had never been a refusal to make an order by an inspector and as a result, they did not have jurisdiction to hear the appeal.

Section 61 of the OHSA requires that an inspector must make the refusal to issue an order in order for an appeal to be available. In these circumstances, there was no inspector refusal. The Unions requested to have an inspector attend the Aug. 24, 2020 meeting, but this did not happen.

The Unions attempted to argue that the Minister and the CPO held themselves out as inspectors, therefore they should be able to rely on their assumption that the Minister and CPO were inspectors during the meeting. This argument did not persuade Chair Fishbein. He ruled it contradicts the Unions’ argument that the Minister and the CPO in fact inspectors. He also stated it cannot be said that the Minister held himself out as an inspector just because the Unions asked for one to come to the meeting.

Even if it was decided that the Minister was an inspector, there still would not have been a refusal to issue an order within the meaning of section 61(5) of the OHSA. Chair Fishbein ruled that the OLRB does not have the authority to issue the orders that the Unions were seeking in the appeals, as the Labour Board only has “all the powers of an inspector.”

This case highlights that the MOL, through its inspectors, only has authority to issue orders for employers on a case-by-case basis. While the Unions cannot pursue province-wide orders through the OHSA, individuals or joint health and safety committees still have a course of action to have their concerns addressed by triggering an inspection.

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This article is authored by Stephen Chew, Summer Law Student.

  • By: Stephen Chew

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