In the wake of some recent high-profile workplace accidents,
2015 legislative amendments to the Workers Compensation
Act were designed to give WorkSafeBC more tools to
enforce its mandate. Among other things, WorkSafeBC can now
apply to the Court for an injunction restraining an employer from
operating in an industry where it has contravened the
Occupational Health and Safety Regulation and where
it is likely to continue doing so. This, and other orders,
are generally enforced by way of contempt proceedings.
However, a recent decision of the British Columbia Supreme Court
demonstrates that where WorkSafeBC seeks the assistance of the
courts, a finding that parties are in contempt will not
necessarily follow. In late February 2016, the British
Columbia Supreme Court declined to find two principals of
organizations engaged in asbestos abatement, which had been the
subject of as many as 244 orders by WorkSafeBC, in contempt of a
2012 order that they comply with the entire Act and Regulation.
Although written reasons for the decision have not yet been
provided, Mr. Justice Macintosh's decision appears to turn on
an assessment that the 2012 order to comply with the entire
legislation and associated regulations was too broad, and, in
particular, that the Regulation was too
"voluminous". This decision has many stakeholders
in the province wondering about its broader implications, and
WorkSafeBC has already indicated that it will appeal once written
reasons are released. According to WorkSafeBC, the basis for
its appeal will be that it requires clarity from the Court of
Appeal as to whether the size and complexity of a regulation can be
a defence to a contempt application.
The history to this case is lengthy, and WorkSafeBC has alleged
that the employer has repeatedly violated the Act and Regulations,
putting individuals at risk of asbestos exposure. By 2012,
WorkSafeBC sought the assistance of the
B.C. Supreme Court and sought an order that the
organizations and their principals comply with the entire Act and
Regulations. The order was granted, and in the months
following, the principals and some of their companies claimed
against WorkSafeBC and others in Provincial Court, Superior Court,
and at the British Columbia Human Rights Tribunal, alleging, among
other things, that WorkSafeBC and certain employees unfairly
targeted the principals because of their race, colour, ancestry and
place of origin. And further, that WorkSafeBC and others
unduly interfered with the business due to the imposition of a
mentoring program, and engaged in malfeasance in public office,
discrimination contrary to the Civil Rights Protection
Act, slander and defamation, and intentional interference with
contractual relations. The complaint under the Human
Rights Code has since been dismissed by the British Columbia
Human Rights Tribunal.
By late 2013, WorkSafeBC was back at Supreme Court seeking an
order that the principals were in contempt of the 2012 order, which
was granted in part. However, further attempts to address
alleged non-compliance with the Act and Regulations appear to have
been stymied by the February 2016 decision, and the reasons for
this most recent decision in the ongoing dispute, and
WorkSafeBC' s expected appeal, are therefore highly
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Ten days following the election, join us for a discussion with Gary Doer, former Canadian Ambassador to the US, and Gordon Giffin, US Ambassador to Canada under Bill Clinton, to discuss how the new President and Congressional makeup will shape US-Canada relations for years to come.
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