Safety rules ‘voluminous, complex’: Court

Rejects contempt of court application by WorkSafeBC
By Sarah Dobson
|Canadian HR Reporter|Last Updated: 04/01/2016

A decision by the Supreme Court of British Columbia has raised eyebrows after it rejected a contempt of court application by B.C.’s workers’ compensation board against two asbestos removal contractors and their firm — despite hundreds of violations of safety laws and regulations over the last few years — saying the rules are “voluminous and complex” and difficult to understand.

“I have to tell you, the labour movement and the employer community, everybody out here is going, ‘What the hell? This is ludicrous,’” said Lee Loftus, business manager of the BC Insulators Union. 

“What’s a legitimate employer to do today? How’s he supposed to actually function if there are other people that aren’t following the rules, there’s no set of standards now. Is that what this means?”

The ruling is hard for members of the Canadian Conference of Asbestos Workers (CCAW) to understand when asbestos kills so many people every year, said Vince Engel, international vice-president for Western Canada at the International Association of Heat and Frost Insulators and Allied Workers, citing the statistic of 5,000 workplace-related deaths in Canada due to asbestos since 1996.

“When we see a ruling like this that says it’s too complicated and then the owner of the company comes out and says, ‘We don’t expose people to asbestos and we’re going to carry on the way we’ve always done,’ when we see that, it’s pretty hard to take,” he said.

“The amount of funerals and all the people that die from this and the families that get devastated, for the Supreme Court to not be able to find a way to enforce the regulations, that’s pretty disheartening for our people.”

But the court’s ruling is not that surprising when you read the decision, said Lorna Pawluk, associate counsel at Bernard in Vancouver.

“What is shocking is that these people are allowed to continue to be in business,” she said. “In a sense, they’re also every employer’s worst enemy because the vast, vast majority of employers really want to comply and they really want to create a safe workplace and you get people like this who seem incapable of understanding their obligations… so it brings a greater enforcement focus on the whole community.”

Background

In 2015, the Workers’ Compensation Board of British Columbia (WorkSafeBC) applied for orders that three 

respondents — Shawn Singh, Mike Singh and Seattle Environmental Consulting — were in contempt of the court’s injunction order made in 2012 regarding compliance with the province’s Workers Compensation Act and Occupational Health and Safety Regulation.

The 2012 order essentially said the Singhs and their companies were not to expose people to asbestos or put people at risk of exposure, and were restrained from doing so; and were restrained from breaching provisions of the act and regulation. 

In 2013, the court found the Singhs were in contempt of parts of the 2012 order, having breached the act and regulation, and they were ordered to pay $10,000 to “purge the contempt.” Shawn Singh was also required to pay an additional $5,000.

The most recent application from WorkSafeBC alleged the respondents had breached the act and regulation since 2013, with 37 counts, including breaching a section on chemical and biological agents, failing to identify potential sources of asbestos, failing to safely isolate debris and not properly identifying and marketing the boundary of a designated work area.

However, in the Feb. 26, 2016, decision, Justice George Macintosh said he would look at the entirety of the 2012 order to determine whether it is “capable of enforcement by a contempt finding.”

One of the three elements required to find civil contempt requires that the order said to have been breached must state clearly and unequivocally what can or cannot be done, he said. And that was the central question: Was the 2012 order sufficiently clear and not overly broad so as to be enforceable?

For example, the 2012 order did not refer to the act or regulation as of a particular date, he said, and both are frequently amended. So it could be referring to the act and the regulation as they stood at the date of the order or as they are amended from time to time. 

The act contains 260 sections and five schedules, organized in four parts that are each subdivided into divisions, said Macintosh.

“The act is voluminous and complex, particularly for people who are not lawyers,” he said, adding the regulation — with sections, guidelines, policies and standards — “is equally or more daunting to the trained eye.”

“For most readers, I expect that a review of the act and the regulation, together, would be somewhat like a review of the Income Tax Act,” said Macintosh.

As a result, the 2012 order did not satisfy the requirement for a clear and unequivocal statement of what the Singhs need to do or not do to avoid being found in contempt, he said.

“Even if every word of the act and the regulation was contained in the body of the 2012 order, it would still be impossible, in my view, for the respondents to know, when they went to work each day, whether their work put them offside of the act or the regulation and, therefore, in contempt of this court.”

While acknowledging the Singhs had incurred penalties at the board in excess of $200,000 — and had paid none of them — Macintosh dismissed the application.

“The board has failed to establish beyond a reasonable doubt the clarity required in order for the 2012 order to support a finding of contempt.”

Reactions

But it’s not rocket science or overly complicated to follow the procedures, said Engel.

“It’s a lot of common sense really on making sure you’re doing it safely. When a normal contractor, a responsible contractor, would get written up once, I’d think the whole company would be concerned and the attitude with a good contractor would be ‘Let’s talk to our people, let’s make sure this never happens again, and we’re going to find a way to do this safely next time,’” he said. “You don’t have to be a Philadelphia lawyer to understand the regulations.”

The problem isn’t that the laws are too complicated, the problem is the attitude of the contractor, said Engel.

“There’s just no way you can make that claim that you’re running a safe operation with that many write-ups,” he said. 

“They’re using the regulations, they’re hiding behind the complexity of how hard it is to actually enforce all the safe procedures. But to do a safe job is not that complex, it’s a lot of common sense.”

It was hoped the judge would assign jail time, said Loftus, citing as an example the case of B.C. contractor Arthur Moore who was sentenced to 60 days in jail in 2012 for contempt of court.

“(Instead), we find ourselves with a Supreme Court judge in Canada saying that there are laws that are on the book that are too voluminous and too complex for people to understand and follow,” he said. 

“Any employer that is doing work anywhere has obligations in all jurisdictions in North America, it’s their responsibility to know and understand how to provide a safe workplace, how to instruct their workers, and how to make sure training is in place. That’s a basic fundamental function for an employer. 

“So for an employer to say, ‘I don’t understand the act and regulations’… says they shouldn’t be in business, they shouldn’t be in operation, because if you’re putting the public and you’re putting the workforce at risk, that’s fundamentally wrong — that takes us back to the 1800s before these acts were developed.”

But it’s true, the act and regulations are voluminous and complex, said Pawluk.

“They are, oh my god… you get into an area and you realize, well, there’s a provision in the act and there’s policy and then there are interpretive guidelines, so it’s just layer upon layer… it’s very complicated,” she said. 

In addition, they can’t possibly enumerate every breach of the act, she said.

“There’s thousands of them, 4,000 rules or something, so you can’t possibly name every one. And, plus, stuff gets amended from time to time.”

The health and safety regulations are also horrendous, said Pawluk, adding the asbestos provisions are really long. 

“There’s been an extensive attempt here to deal with asbestos violations, it’s been a focus because asbestosis is still the leading cause of death due to occupational disease, and the latency is 20 to 30 years, so WorkSafe(BC) is really focusing on that, quite apart from the fact that people are dying from that.”

But it’s not clear why WorkSafeBC took the approach it did in the recent application in seeking an injunction instead of regulatory persecution or criminal code provisions, said Pawluk. However, with new and improved stop-work provisions (as of late 2015) “it could very well be a different thing going forward,” she said.

Moving ahead

Previously, the board could only use a stop-work provision for one job at a time but the legislation has been changed so all of the work by an employer can be stopped until it complies, said Loftus.

“The challenge is that it’s attached to the employer, not the individual,” he said, meaning an employer can wind down its operations and then open up as a new one.

“It’s only the courts that can do that and order them to comply as an individual.”

For stable, viable businesses that are doing the right thing, this decision isn’t really going to have much of an impact, said Pawluk.

“It might increase the enforcement focus on the asbestos sector. If you’re a fly-by-night organization, nothing is going to get you because you can escape to the next jurisdiction… these guys are clearly not cogniscent of the safety obligations.”

While real, legitimate employers are not going to “start shooting from the hip” after this ruling, the underground economy, with unsophisticated employers, may use this as an argument, said Loftus.

“If they lose the (appeal), then where do we go, do we start rewriting regulations, do we start rewriting legislation? I think that both the federal government and the provincial government need to be concerned and monitoring this, and need to make sure there’s safeguards in place.”

But there is a solution, he said.

“We’re calling on the provincial government and municipal governments in the interim to provide licensing of these employers. It’s easier to pull a licence than it is to go through the process and prosecution and legislation for workers’ compensation violations,” he said. 

“We could probably create greater enforcement as a result of that and, therefore, won’t have to worry about amending regulations.”

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