No contempt in the face of the “voluminous” British Columbia Occupational Health and Safety Regulation
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 anticipated.
WorkSafeBC’ s comments on the decision can be found here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_16.asp?_ga=1.237658628.562962873.1448414730 and here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_02.asp
The author thanks Amelie Boultbee, articling student with Dentons in Vancouver, for her assistance with this article.