New tools aim to strengthen WorkSafeBC

By BCShippingNews
December 14 2016
Lorna Pawluk, Associate Counsel with Bernard LLP
By Lorna Pawluk, Associate Counsel with Bernard LLP

Employers in British Columbia should be aware of the new tools now available to WorkSafeBC to enforce compliance with workplace safety obligations. Legislation passed in the summer of 2014 has resulted in a greater range of enforcement tools available to WorkSafeBC to deal with employers who do not comply with their health and safety obligations under the Workers Compensation Act and the Occupational Health & Safety Regulation. In addition to the power to impose OHS orders and administrative penalties, WorkSafeBC has strengthened authority to shut down worksites and businesses, and to stop directors and officers from continuing business operations in a new organization.

Background

The impetus for these extensive changes was the January 20, 2012, explosion at the Babine Sawmills in Burns Lake. The mill burst into flames, killing two workers. WorkSafeBC dispatched officials to commence an investigation, but three months later and before their inspection was complete, another explosion killed two more workers at the Lakeland Mill in Prince George. A second investigation ensued. Both investigations culminated in a report from WorkSafeBC to Crown Counsel to determine whether there was sufficient evidence to commence a prosecution in the courts. The vast majority of workplace accidents and inspections are prosecuted through an administrative penalty system that bypasses the courts and is dealt with by a system of WorkSafeBC tribunals. But the severity and profile of the Babine and Lakeland mill explosions led WorkSafeBC to take the more unusual route of seeking a prosecution in the courts.

After reviewing the evidence gathered by WorkSafeBC personnel, Crown Counsel took the rare step of publishing a “Clear Statement” to explain why evidence was insufficient to prosecute the mills in court. Essentially, the Clear Statement pointed to deficits in the investigation protocol followed by WorkSafeBC, concluding that most of the gathered evidence would not be admissible in a court of law. Not only was there unexplored evidence of due diligence by the employer, many of the interviews were not conducted in accordance with procedures necessary because of the Charter of Rights & Freedoms.

In response, Premier Christy Clark appointed Deputy Minister John Dyble to respond to the Clear Statement. After a review of relevant material, he issued a statement that was very critical of WorkSafeBC and recommended the appointment of Vancouver lawyer Len Doust to oversee a series of improvements in the WorkSafeBC investigation and enforcement system. As part of that process, Minister Shirley Bond appointed former Deputy Minister Gord Macatee to recommend changes to the WorkSafeBC processes. On July 1, 2014, he delivered a report “WorkSafeBC Review and Action Plan” that recommended 43 amendments to the Workers Compensation Act. Bill 9, the Workers Compensation Amendment Act, passed on May 14, 2015, expanded WorkSafeBC power to foster compliance with safety regulations, expedite workplace accident investigations and issue stop work orders.

New measures

The vast majority of non-compliances with the Workers Compensation Act and Occupational Health & Safety Regulation will continue to be enforced with orders as outlined in an Inspection Report, with more serious or repeat infractions being addressed with an administrative penalty. However, Bill 9 provided a number of additional enforcement tools that may allow more nuanced regulatory responses. These include:

Compliance agreement — A compliance order is available to WorkSafeBC as an alternative to issuing an order. It is available in low-risk situations where an employer voluntarily agrees to correct any violations by a specified date. The agreement can be unilaterally rescinded by WorkSafeBC when the conditions or reporting conditions have not been met by a specified date; when the employer intentionally provides misleading or false information; or when new evidence shows that workers are at immediate risk of injury or occupational disease.

To read the full article from the December 2016/January 2017 issue of BC Shipping News, please log in.