In 2012 there were two high profile industrial workplace explosions in British Columbia that ultimately did not led to prosecutions.
As a consequence, on April 12, 2014, the British Columbia Minister of Jobs, Tourism and Skills Training and Minster Responsible for Labour (Minister) issued a letter to the Chair of the Board of Directors of WorkSafeBC setting out steps that needed to be taken to make sure WorkSafeBC's investigations were handled correctly for future prosecutions. The issue of how evidence was gathered by WorkSafeBC investigators was a key concern. In particular, warrantless seizures and a failure to inform witnesses regarding their Charter rights precluded important evidence from being able to be relied upon in prosecution of charges.
In response to the April 12th letter, on July 1, 2014, the WorkSafeBC Review and Action Plan, drafted by WorksafeBC Administrator, Gordon Macatee, was provided to the Government (the "Macatee Report").
The Macatee Report issued (43) recommendations. WorkSafeBC and the Government have stated that they intend to adopt all the recommendations. As the recommendations become adopted, they will impact the OHS environment for British Columbia employers and workers. Some of the most significant recommendations include the following:
- WorkSafeBC to develop a policy to guide referrals to the CJB for prosecution and to engage in enhanced co-operation between these two organizations.
- WorkSafeBC to implement a new investigation model that preserves the ability to conduct both cause investigations and prosecution investigations.
- WorkSafeBC to align inspection and enforcement activities to focus on high risk activities and individual operators who have a history of being out of compliance with OHS requirements
- Introduce an employer assurance of compliance tool, similar to what occurs within the federal industries pursuant to Canada Labour Code. When there is no immediate risk to health or safety, there is room for a voluntary undertaking of corrective action.
- Introduce on-the-spot penalties, in the form of citations, against employers as required. For certain specified infractions, the fine associated with the citation might be revoked if specified conditions are met within a fixed time period. The employer would be required to provide evidence that the conditions have been met in the form requested. For more serious infractions, the fine would not be revocable.
- Consider introducing citations against workers who fail to wear personal protective equipment.
- Amend the stop work order provision of the Workers Compensation Act ("WCA") to establish three (3) criteria for issuing stop work orders: (1) situations where there is danger that is not immediate but involves a high risk of serious consequences; (2) where the order will apply to multiple worksites that are preforming the same function in the same way (e.g., roofing companies); (3) to escalate enforcement where orders, citations, and/or penalties have been ignored.
- Review the administrative penalty amounts imposed so that the penalty is proportional, with consideration of the circumstances of the incident and the size of the employer.
- Amend the WCAto improve the ability for WorkSafeBC to pierce the corporate veil to address situations of non-payment of administrative penalties by an employer.
- Amend and broaden the injunction power of BC Supreme Court judges set out in the WCA to allow the granting of an injunction to restrain a person from carrying on "in an industry, or an activity in an industry", indefinitely or until further order of the Court.
As the Macatee recommendations get implemented, BC employers and workers can expect a more consistent and sophisticated approach in OHS investigations at workplaces which may result in more charge approvals by the CJB. In addition, with more tools in their arsenal, BC employers can expect a wider array of educational and enforcement techniques being employed by WorkSafeBC in the promotion of occupational health and safety at the workplace.