Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal
A safety officer’s compliance order has been suspended where the cost of compliance would be so high that it could cause serious economic harm to the company.
The company performed stevedoring and terminal handling of containers at the Port of Montreal. It employed “checkers” who used Toyota Echo and Yaris cars to move about the Port coordinating work. A federal health and safety officer decided that the lighting levels of two terminals at the Port were below the prescribed standards. She issued a direction requiring the employer to end the violation and increase lighting levels.
The company appealed and applied for a suspension of the direction. The company presented evidence that in order to comply with the direction, it would need to install 10 new “lighting towers” at a total cost of at least $2 million. The company also noted that it was impossible to install new lampposts by the compliance deadline because it was winter and the ground was frozen.
The federal Occupational Health and Safety Tribunal Canada decided that the direction should be suspended pending the outcome of the appeal. Firstly, there was a serious legal issue as to whether the direction was legally correct. Secondly, the company would suffer serious harm if the direction was not suspended. First, it appeared impossible to comply with the direction, by the deadline, given the weather conditions and engineering work involved. The company could suffer serious economic harm that could threaten the company’s viability, given the cost of compliance. Further, the inspector took 9 months, after her inspection, to issue the direction, suggesting that the lighting levels did not pose a serious hazard. Thirdly, the company was willing to put additional safety measures in place – including painting the cars a different colour, installing an LED light at the tip of the flag on the car, and adding lights to the checkers’ safety vests – that adequately protected the checkers.
The Tribunal agreed to suspend the direction on the condition that the company takes action, immediately, to put into place the additional safety measures.