The Ontario Labour Relations Board (OLRB) extended the filing deadline for an appeal by a worker against an inspector’s order under the Occupational Health and Safety Act (OHSA). The appeal, originally due within 30 days of the order dated April 4, 2024, was delayed due to what the worker described as “inexperience and lack of knowledge.”
The case centres around Terrapure Environmental’s installation of a video camera in a workplace staging area, a move that prompted concerns about employee privacy. T.X., who was involved in the matter, did not file a timely appeal with the Board, mistakenly delivering it to the Director under the Act instead. Despite this oversight, the Board ruled that the employer, Terrapure Environmental, would not suffer undue prejudice from the delay.
Vice-Chair Rishi Bandhu, who presided over the case, stated that the failure to meet the deadline was “inadvertent” and that the applicant “intended to initiate a timely application but delivered it to the Director instead of filing it with the Board.” The ruling emphasized that any costs or efforts required by Terrapure to respond to the appeal were not considered prejudicial since these would have been incurred even if the application had been timely.
Video surveillance concerns
The core of the appeal is the installation of a video camera in Terrapure’s staging room, where supplies like coveralls and batteries are stored. While the room has individual lockers and is not used for changing clothes, T.X. contended that the camera could still capture workers in their undergarments, thus raising privacy issues.
The inspector’s report, which is being appealed, stated that the camera’s installation did not violate the OHSA as no harassment complaint had been made regarding the camera. The inspector noted, “there was no reported concern regarding harassment and the camera situation.” T.X., however, took issue with this conclusion, arguing that the inspector’s note was “misleading” because it did not fully capture the privacy concerns.
Terrapure responded by removing the camera one day after its installation. The company, supported by the Director, argued that the matter was moot since the camera had been removed and a grievance regarding the surveillance had been resolved with the union representing the employees. Furthermore, they contended that T.X. did not have the standing to appeal the inspector’s findings, asserting that he was not “aggrieved” within the meaning of the Act.
Preliminary dismissal request
In addition to the extension of the filing deadline, the OLRB also addressed preliminary requests from Terrapure and the Director to dismiss the appeal without a hearing. Terrapure and the Director argued that the appeal should be dismissed on the grounds that it was now academic and that the remedy sought by T.X. —an order for the inspector to rephrase his note—was improper.
The Director’s submission supported Terrapure’s stance, indicating that since the camera was no longer in place, the issue was resolved and thus, the appeal was unnecessary. They also argued that the Board did not have the authority to order the inspector to amend his report.
Submissions invited
Vice-Chair Bandhu directed T.X. to respond to the submissions by Terrapure and the Director by July 26, 2024. T.X. is required to provide his response to both parties before filing it with the Board and must also submit a Certificate of Delivery to confirm these submissions. Terrapure and the Director are not to respond to T.X.’s submissions unless instructed by the Board.
For more information, see Thomas Xavier v Terrapure Environmental, 2024 CanLII 73464 (ON LRB).
