Alberta is entering a new era of Occupational Health and Safety ("OHS") enforcement with legislation now in force which empowers OHS Officers to impose "administrative penalties" and issue "tickets" for OHS violations. While the legislation has been in force since October 2013 and January 2014, respectively, those powers have not been exercised by OHS Officers as of the date of this article. They soon will be once the necessary framework is in place, which includes, amongst other things, training for OHS Officers to officially become "peace officers".
Predicting the impact of these new enforcement tools is uncertain as many questions regarding the details of how the legislation will be enforced remain unanswered. The list of questions is long. For example, will an employer be notified of a worker's OHS ticket? Does notification violate the worker's privacy rights? How should the employer respond if notice is given about the violation? Does the employer discipline the worker over and above the ticket? Does the employer have a choice? What if the employer does not discipline the worker and the worker is later injured for the same violation? Will the failure to act be used against the employer? Will a history of worker violations be used against the employer in a subsequent prosecution? This is just a small sample of the kinds of questions arising with respect to tickets and administrative penalties. The list of questions goes on and on. Undoubtedly, those issues will be causing headaches for some time.
In the meantime, as Alberta makes its way through this new era of enforcement, we have the benefit of learning from a recent experience in British Columbia, one which provides insight for OHS regulators, prosecutors and employers.
For many years WorkSafeBC ("WSBC"), the OHS Regulator in British Columbia, has primarily relied on the use of administrative penalties to enforce its OHS laws. There is the ability to commence formal OHS regulatory and criminal prosecutions in B.C., but those types of charges are seldom laid in B.C. Instead, by far the vast majority of focus on OHS enforcement over the last decade has been on the use of administrative penalties. The administrative penalty system in B.C. does not embrace the same evidential and procedural safeguards which are found in a formal OHS regulatory or criminal prosecution. This has its advantages and disadvantages. One of the disadvantages is that the lack of scrutiny on the quality of the investigation in the administrative system can set investigators up for failure when they transition the investigation from the administrative penalty system to a formal prosecution. The reason is because the latter has stricter investigative requirements to introduce evidence. It is a transitional problem in the sense that investigative flaws only become material when a formal prosecution is contemplated.
This problem was recently illustrated in the tragedy at the Babine Forest Products sawmill at Burns Lake, British Columbia, where a fire and explosion(s) occurred in January 2012 which resulted in the deaths of two workers and 20 workers being injured, some seriously. An investigation into the fire was conducted by the RCMP and WSBC. Neither agency recommended criminal charges, but WSBC submitted a report to the Criminal Justice Branch of British Columbia ("CJB") with a recommendation that OHS regulatory charges be laid against the employer. The CJB has pre-charge approval and without their consent, no charges can be laid. No charges were recommended by WSBC against any individuals. The CJB reviewed the investigation, met several times with WSBC investigators, and ultimately concluded there was "no substantial likelihood of conviction", and accordingly, refused to approve charges as recommended by WSBC. The CJB issued a media statement explaining their reasons for their decision. Those supporting reasons included the inadmissibility of certain evidence, inconsistent expert evidence regarding the cause of the fire, the strength of the due diligence defence available to the employer, and challenges from unexplored avenues of investigative inquiry. It sounds bad, but the decision not to prosecute appears largely based on the strength of the due diligence defence available to the employer and the inability of the Crown to rebut that defence.
WSBC also issued its own media statement regarding the decision not to prosecute, which to some, appeared misleading in certain respects. Frustration and rhetoric ran high and eventually the Premier of B.C. intervened and directed her Deputy Minister to review the situation and make recommendations remedy it. The Deputy Minister, John Dyble, prepared a formal report which was released on February 6, 2014, and contained 13 recommendations to improve the process. The full report, together with the media statements from the CJB and WSBC can be reviewed at: http://www.labour.gov.bc.ca/wab/pdf/Babine_report_Web_140211.pdf. The Premier obviously was not impressed with the investigation and adopted all of the recommendations of Deputy Minister Dyble. The Premier was not pleased with the situation and was quoted in the media as saying: "I'm deeply disappointed with the way WorkSafe conducted this investigation....This must be fixed."
What are some of the important lessons from the Burns Lake fire? The first is to recognize there is an important legal line that is crossed when regulators move from an "inspection or audit" into an "investigation" aimed at collecting evidence to sustain a prosecution. Once the line is crossed by a regulator, evidential and procedural safeguards are triggered, and evidence can be rendered inadmissible in court if the regulator fails to respect those safeguards. This comes as no surprise. The Supreme Court of Canada formally recognized this principle in 2002 in two decisions, R. v. Ling and R. v. Jarvis, both tax cases. In those cases, the Supreme Court of Canada held that an individual is entitled to Charter and other evidential and procedural protections when a tax "audit" becomes an "investigation" for breaches of the Tax Act. This principle applies equally to most regulatory agencies including OHS investigations. At some point in time, an inspection, or even an investigation to determine the ""cause" of the accident", may arguably cross the line and transition into an "investigation" to collect evidence to lay charges in a formal prosecution. Failing to recognize this fundamental difference can lead to evidence being inadmissible. Better planning, training and communication for investigators and prosecutors can prevent the situation, or so the incident at Burns Lake tells us.
The incident at Burns Lake also teaches the value of having a due diligence defence in the first instance. It is important to remember the prosecutors concluded there was sufficient evidence to sustain an OHS regulatory prosecution notwithstanding any evidence that would have been excluded as inadmissible. In other words, the remaining admissible evidence would have justified a prosecution but for the potential due diligence defence available to the employer and the inability of the prosecutors to rebut that defence. If not for the due diligence evidence on the part of the employer, the decision to prosecute might have been different. An important lesson for employers to keep in mind when resourcing their health and safety management system.
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