Court of Appeal overturns controversial asbestos ruling

Journal of Commerce   |  OH&S  |  by RUSSELL HIXSON Feb 1, 2017

The BC Insulators Union and the BC Federation of Labour are celebrating the B.C. Court of Appeal’s decision to overturn a controversial ruling that stated asbestos laws were too difficult to enforce.

The union and federation leaders are also calling on government to require asbestos removal firms to register in order to operate.

This month the court of appeal unanimously overturned a February 2016 B.C. Supreme Court ruling that found WorkSafeBC laws protecting asbestos removal workers from the deadly substance were too “voluminous and complex” to enforce.

More specifically, the decision overturns a Supreme Court decision that dismissed a contempt of court application against Seattle Environmental owner’s Mike Singh and son Shawn Singh.

According to WorkSafeBC, allegedly the B.C. firm has repeatedly been found to have breached health and safety laws and faces over $355,000 in fines for violations between 2013 and 2015. Mike Singh was also a principal at Skylite Building Maintenance, another firm with a long record of asbestos safety law violations and over $200,000 in fines, WorkSafeBC claims.

“This (the court decision) is an incredible relief to not only asbestos removal workers who need maximum safety protection to deal with the number one workplace killer in B.C., but all workers dependent on our health and safety laws to prevent workplace deaths and injuries,” said BC Insulators Union business manager Lee Loftus, who also suffers from workplace asbestos exposure.

“If the original B.C. Supreme Court decision…had not been overturned, the number of people put at risk would have been disastrous,” Loftus said. “In 2015, asbestos killed 42 workers in B.C. and likely more in 2016. This is the most dangerous product workers can handle and safety is essential.”

BC Federation of Labour president Irene Lanzinger echoed Loftus’s concerns, saying that: “Allowed to stand, the earlier ruling would have created an open season on worker health and safety. So we are comforted that the Court of Appeals reinforced employers’ responsibility to abide by health and safety laws.

“But there’s a bigger problem still to address because the Christy Clark government simply isn’t doing enough to keep workers safe on the job,” Lanzinger added.

The BC Insulators Union and the BC Federation of Labour are calling on the provincial government to immediately introduce legislation during the spring session of the B.C. Legislature to force asbestos removal firms to be registered in order to operate in B.C., a mandatory requirement in other jurisdictions such as Washington State, England and Australia.

“We need legislation to allow authorities to immediately pull the business license of any firm found to be violating asbestos removal safety laws because they are not only putting their workers’ lives at risk, they are also putting neighbours and anyone coming close to an asbestos removal site in danger,” Loftus said.

“Seattle Environmental — despite all its WorkSafeBC safety law violations and hundreds of thousands of dollars in fines — is still operating today because we have no licensing requirements and WorkSafeBC is forced to go through the courts to get enforcement orders. That’s way too slow when lives are at risk and that’s why other jurisdictions demand asbestos removal firms be licensed,” he added.

In the B.C. Supreme Court decision on the contempt of court application, Justice George Macintosh ruled that: “In my view, it is a practical impossibility for the Respondents in this case to know with any clarity what it is they are to refrain from doing.”

The Court of Appeal disagreed.

“While the Act and Regulation may have some complexity, the persons to whom they apply voluntarily engage in a business for profit in a highly regulated area, and do so on the understanding that they must comply with the Act and Regulation,” wrote B.C. Court of Appeal Justice John E.D. Savage. “The Act and Regulation are concerned with workplace safety. Requiring familiarity and understanding of statutory and regulatory requirements for workplace safety from voluntary industry participants is not an impermissibly onerous requirement. This is especially so, given the nature of the business in this case.”

Justice Savage also agreed that the case was precisely made for a contempt of court application.

“In my view, it was precisely situations like the one at bar, where the alleged contemnors have a long history of breaches of the regulatory regime, that the legislature provided this avenue for court-ordered injunctive relief to ensure regulatory compliance,” he said.

The Singhs appealed to have a 2012 court order to comply with the laws set aside, but Savage declined to do so. Savage’s ruling was agreed to by Justice David Frankel and Justice David Harris.

Loftus said he understands a new contempt of court application against the Singhs and Seattle Environmental will proceed later this year.

Asbestos exposure is responsible for 60 per cent of workplace deaths in B.C. Asbestos fibres inhaled by workers can lead to mesothelioma and other deadly diseases. In September 2016, WorkSafeBC fined Seattle Environmental nearly $280,000 for asbestos health and safety violations between 2013 and 2015.

WorkSafeBC court filings said that since a 2013 B.C. Supreme Court decision in which the company and the Singhs were fined $15,000, Seattle Environmental and Mike Singh have been in breach of laws and regulations in multiple Metro Vancouver cities.