Following changes to the British Columbia Workers'
Compensation Act ("Act")1 in
2015, employers are now required to conduct preliminary and full
incident investigations and provide reports of these investigations
following certain workplace incidents. In a
recent bulletin, we advised readers of WorkSafeBC's
policies respecting the dual reporting requirements and preliminary
and full incident investigations.
Failure to comply with these policies and corresponding
provisions of the Act can result in significant administrative
penalties. In limited circumstances, however, employers may rely on
the defence of due diligence to avoid liability.
Occupational Health and Safety Penalties
Several policy amendments respecting occupational health and
safety penalties ("OHS penalties" or "OHS
penalty") came into effect on March 1, 2016.2
Non-compliance with the accident investigation or reporting
requirements, or other breaches of Part 3 of the Act, may
result in OHS penalties, which are administrative penalties.
The purpose of OHS penalties is to motivate the employer
receiving the penalty, and other employers, to comply with the
Act and the corresponding regulations.
When certain circumstances occur, the Board may impose an OHS
penalty if the Board is satisfied on a balance of probabilities
a) the employer has failed to take
sufficient precautions for the prevention of work related injuries
b) the employer has not complied with
Part 3 of the Act, which includes the regulations or an applicable
c) the employer's workplace or
working conditions are not safe.
Circumstances when the Board will consider an OHS penalty
include a violation which results in a high risk of serious injury,
serious illness, or death (such as work in the vicinity of
potentially combustible dust without the necessary precautions to
protect workers),3 recurrent violations of the same or
substantially similar sections of the Act or regulations,
and where the Board considers that the circumstances warrant a
In considering whether or not an OHS penalty is appropriate, the
Board must consider several factors, which include the potential
for serious injury, illness or death and the likelihood that the
penalty will motivate the employer to comply in the
future.4 Although OHS penalty amounts vary, these
penalties can be significant as the maximum OHS penalty amount is
Employers have the ability to review administrative penalties
within 45 days of the decision to impose the penalty.
Instead of WorkSafeBC issuing an administrative penalty to an
employer, the Board may refer the file to the British Columbia
Crown Counsel, and Crown Counsel may decide to prosecute the
employer in provincial court for a violation of the Act.
Prosecutorial activity is undertaken only rarely and in the most
Employers can defend against OHS penalties where the evidence
shows, on a balance of probabilities, that an employer exercised
due diligence to prevent the failure or non-compliance or
conditions to which the penalty relates.6 The onus is on
the employer to prove due diligence, which can be established in
the employer took all reasonable care and steps to avoid the
particular event; or
the employer reasonably believed in a mistaken set of facts
which, if true, would render the act or omission innocent.
The Board will look at all of the circumstances of the case and
consider what a reasonable person would have done in the same
circumstances faced by the employer.
In order to effectively assert the defence of due diligence, it
may be advisable for employers potentially facing these
administrative penalties to discuss with a lawyer the circumstances
of the case and the possibility of establishing the defence of due
diligence before raising it with the Board.
Furthermore, employers who receive administrative penalties may
want to contact a lawyer in drafting submissions for
WorkSafeBC's Review Division.
1 Workers' Compensation Act, RSBC 1996, c. 492 at
Part 3, Division 10 [Act].
2 Amended policies include Policy Items D12-196-1 and
3 Policy Item D12-196-2.
4 Policy Item D12-196-1.
5 Policy Item D12-196-6.
6 Policy Item D-12-196-10.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
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We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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