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Judge's ruling jeopardizes British Columbia's workers comp system

Posted On: Mar. 10, 2016 12:00 AM CST

Judge's ruling jeopardizes British Columbia's workers comp system

A Canadian judge's rejection of a contempt citation for an asbestos removal company cited more than 200 times by British Columbia's workplace safety regulator could upend the province's workers compensation system, union officials say.

In a late February ruling, Supreme Court Justice George Macintosh dismissed a contempt of court citation sought by provincial regulator WorkSafeBC against Mike and Shawn Singh and their firm, Vancouver-based Seattle Environmental Consulting Ltd. for failing to abate workplace hazards related to asbestos removal.

The Vancouver judge reportedly said the law and the rules are too complex to be understood to allow compliance.

Although the written decision has not yet been released, WorkSafeBC and labor unions said Judge Macintosh expressed concerns about the broad scope of an earlier order directing the Singhs to comply with the province's Workers Compensation Act and Occupational Health and Safety Regulation and the “voluminous” and “complex” nature of the legislation and regulation.

“That any judge in any court, whether it's in Canada or in the United States, would come out and say that a piece of legislation and the attached regulations are too complex for people to understand and follow, that just shocks me,” said Lee Loftus, business manager, BC Insulators union in Vancouver.

“If that's true, I don't need to pay my income tax,” Mr. Loftus said. “If that's true, I don't have to worry about drinking and driving laws. If that's true, then I don't need to worry about any type of complicated law. I can make an argument saying I didn't understand it and therefore I don't have to comply.”

WorkSafeBC, which declined further comment, said in a statement that it will appeal the decision to the British Columbia Court of Appeal.

“We think it needs to be appealed because employers need to be held accountable when they put workers at risk,” said BC Federation of Labour President Irene Lanzinger, who is based in Vancouver.

“Unfortunately, if this ruling stands, it sends a message to employers that if they break the rules, there's no real consequence to that.”

British Columbia's Workers Compensation Act gives regulators broad authority to issue orders and impose penalties — up to about $628,000 Canadian ($472,000) – so regulators ask courts to intervene only in extreme circumstances when they are unable to get employers to comply, said Dana Hooker, a Vancouver-based partner at Dentons Canada L.L.P.

From 2007-2012, the regulator filed 237 orders against the asbestos contractor for safety violations, according to the unions. The Singhs also have been fined CA$15,000 ($11,265), according to legal documents.

“This is a contractor, and there are a number of them, that continually ignored health and safety regulations and rules and having the regulatory body write workplace orders against them has had no impact,” Mr. Loftus said.

Work-related deaths due to asbestos exposure have increased from 26% of all work-related deaths in the province in 2005 to 45% in 2014, according to WorkSafeBC (see chart).

The federation has been lobbying for employers to face jail time if their negligence leads to employee fatalities. In January, a 3½-year jail sentence imposed on a Metron Construction Ltd. construction project manager in Ontario in a fatal workplace accident was “a step in the right direction,” Ms. Lanzinger said.

“I think we're really hoping (the BC case) doesn't put us backwards in that regard,” she said.