Blog Post #1510 – Court Overturns Decision in British Columbia

Excerpt from the OH&S Canada magazine (January 2017)

Original report by: Jeff Cottrill (Editor)

The British Columbia Court of Appeal recently three out a decision by the provincial Supreme Court from a 2016 decision that rejected a WorkSafeBC order against an asbestos-removal contractor.

On February 26, 2016, Judge George MacIntosh of the B.C. Supreme Court ruled that Seattle Environmental Ltd., had not violated a 2012 order to comply with the province’s Workers Compensation Act and Occupational Health and Safety Regulation. The judge stated that the order had been too complex and vague for the company to follow and that WorkSafeBC had not set out “in unambiguous terms.”

But WorkSafeBC appealed the decision. On January13, 2017, Justice John Savage of the Court of Appeal in Vancouver wrote in a unanimous court decision that the order’s term “are not ambiguous or insufficiently clear so as to be incapable of supporting a finding of contempt, given the nature of the statutory regime for workplace safety and the procedural history.”

The case origins date back to July 31, 2012, when WorkSafeBC filed a petition for orders restraining Seattle from exposing people to asbestos. WorkSafeBC cited 17 incidents in which the firm alleged violated the Act and Regulation, while noting that it had issued 244 orders to it.

The judge noted that while the Act and Regulation may be complex pieces of legislation, this does not excuse people in a highly regulated profession like asbestos removal from following them. “Requiring familiarity and understanding of statutory or regulatory requirements for workplace safety from voluntary industry participants is not an impermissible onerous requirement,” Judge Savage wrote. “This is especially so, given the nature of the business in this case.”

The B.C. Federation of Labour and the B.C. Insulators Union applauded the decision. In a statement dated January 29, 2017, Federation President Irene Lanzinger says she is “comforted that the Court of Appeal reinforces employers’ responsibility to abide by health and safety laws.”

But Lanzinger cautions that the provincial Liberal government is still not doing enough to protect workers and that its asbestos-removal laws are inadequate. “They failed to act on practical solutions that unions proposed to protect the well-being of workers in the asbestos-abatement industry,” she says. “Workplace protections are weak and not always rigorously enforced.”

My opinion

I was angered and overjoyed by the two decisions concerning asbestos-abatement. Judge George MacIntosh, totally erred in his judgement in this case. Was Judge MacIntosh even aware that this is a highly regulated “Designated Substance”?

A designated substance is any of the following;