WorkSafeBC appeals asbestos contempt ruling

Journal of Commerce by RUSSELL HIXSON     |    Mar 28, 2016

WorkSafeBC has appealed a court ruling that rejected a contempt of court case against an asbestos testing company because an order to follow safety legislation and regulations was broad and too voluminous.

After WorkSafeBC got a 2012 court order requiring Mike Singh and Shawn Singh of Seattle Environmental Consulting Ltd. to comply with safety laws, they filed for contempt after it found evidence the order was broken when the behavior continued.

According to court documents, 37 incidents of the pair breaching safety laws were presented, including not putting up signage to indicate asbestos removal work was being conducted, failing to contain that debris and failing to identify potential sources of asbestos during surveys. They have racked up roughly $200,000 in penalties, $6,000 of which has been paid via garnishment.

However, Justice George Macintosh dismissed the WorkSafeBC contempt application, explaining in his decision that the original order was too broad. He wrote that safety laws and regulations were “voluminous and complex” and that “to most observers it would be like looking through the Income Tax Act.”

Court documents also show the Singhs alleged they were smeared by the media and WorkSafeBC’s crackdown on the company was racially motivated. They have filed suit and took their discrimination complaint to the Human Rights Tribunal. The case was dismissed but they have appealed.

In his decision, Macintosh called this behaviour by the pair “serial violations of the Act and Regulation” and “repeated use of vexatious litigation.”

The dispute began in 2012 after evidence of breaches of the safety law and regulations were presented to court. The Singhs were ordered by the court that they “shall not expose persons to asbestos or put persons at risk of exposure to asbestos and is restrained from doing so.” They were told not to break the Act and Regulations.

On Oct. 11, 2013, the Court found that they were in contempt of the 2012 order, having breached the act and the regulation after the 2012 order was made. The court ordered them to pay around $15,000 in fines.

According to documents, they were instructed: “As you know and you have heard over the last several days, this is a very serious matter and if there were any further breaches or any show of defiance of the Order of this Court, it would become even more serious … So, please, guide yourselves accordingly.”

WorkSafeBC is appealing the Macintosh decision, asking for clarity from the Court of Appeal as to whether the size and complexity of a regulation can be a defence to a contempt application in these circumstances. According to its website, WorkSafeBC shall be relying on the proposition that “ignorance of the law is not an excuse for non-compliance with a regulation.”

In another case on March 9, WorkSafeBC was successful in obtaining a narrower court order requiring a roofing company and its principals to comply with specific roofing regulations which it believes could be easier to enforce if breached.

A new enforcement tool that recently came into effect out of Bill 9 could also aid WorkSafeBC with the Seattle Environmental case. The new section allows WorkSafeBC to apply to the court for an order to restrain an employer from operating in an industry where it has “contravened the regulation and is likely to continue to do so.” This remedy differs from other similar ones, as it is not tied to penalties or assessments.

WorkSafeBC representatives would not confirm if it plans to utilize the new remedy in the Seattle Environmental case.

The decision has received heavy criticism from labour groups, including the B.C. Federation of Labour and the B.C. Building Trades.

“This is an absolute shock to all workers — despite evidence of multiple violations of WorkSafeBC laws and regulations and after a clear warning from the B.C. Supreme Court to obey those laws, today the court has refused to enforce that order and impose appropriate penalties,” said B.C. Federation of Labour President Irene Lanzinger.

“So we now have a crisis in worker health and safety. If asbestos removal workers are in jeopardy due to laws and regulations not being enforced, so is every other worker in B.C. Employers who put their workers in harm’s way must be held accountable.”