Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M A Y 2 0 1 5 13 \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP Doroshenko said he will also challenge powers given to the superintendent of motor vehicles under the amendments to produce evidence. A tribunal should be an independent review, said Doroshenko. "[The superintendent's office] can create their own evidence," he said, adding he is also looking at whether this is unconsti- tutional and violates search and seizure rights under the Canadian Charter of Rights and Freedoms. He said that Buhr v. British Columbia (Superintendent of Motor Vehicles) already points to limiting the superintendent's input in a hearing with an adjudicator. In Buhr, the superintendent submitted a report that sustained the use of a second- ary breathalyzer testing device even though it was used outside the recommended temperature application. BC Supreme Court Justice R.B.T. Goepel ruled the considerations were limited to statements and evidence submitted by the applicant and information submitted by the police officers. A press release issued by the B.C. government on the changes said they pro- vide greater fairness in the system. "They respond to recent court decisions and enhance the fairness of the administra- tive review process by, for example, giving the Superintendent of Motor Vehicles the authority to revoke an IRP upon review when a sworn report has not been pro- vided by police." Doroshenko said Murray v. Brit- ish Columbia (Superintendent of Motor Vehicles) affirms information from officers passed to the superintendent must be sworn and the issue was argued all the way to the Supreme Court of Canada. However, Doroshenko maintains police have not routinely provided sworn information and only did so when there is a challenge. The office of the superintendent would ask for the information to be sworn and simply resubmitted. Doroshenko is taking forward the case Wilson v. British Columbia (Superintendent of Motor Vehicles) to the Supreme Court of Canada on May 19, arguing another aspect of tribunal shortcomings. The issue deals with reasonable grounds for evoking an IRP when a person's breathalyzer test is a "warning." A lower court ruled that police must have reasonable grounds as well as the warning rating to evoke a suspension. Doroshenko said under the review process, there is no ability to challenge what are reasonable grounds and seek remedy. Doroshenko is not buoyed by the increase in tribunal hearings, a move by B.C. to reduce court backlogs in all areas of dispute ranging from small claims to strata disputes. "It is a frighten- ing direction that B.C. is going with its increase in tribunals," said Doroshenko. — JEAN SORENSEN jean_sorensen@telus.net I t's not unusual to find a lawyer in a dust-up, but Vancouver lawyer Nancy Har- wood is leading the charge on a different kind — silica dust, one of the most common found at a variety of work sites. Harwood is heading up a project to develop an online tool that can be used for the testing of silica and what preven- tative measures can be installed. "It's rewarding to be involved in the prevention end of things and something that will have serious impact on people's lives," said Harwood, whose firm is dedi- cated solely to health and workplace law. Harwood spent 16 years with WorkSafeBC doing legal work and just over a year ago founded her own firm The Harwood Safety Group to address the growing number of legal issues involving employers and employees, including B.C.'s new anti-bullying laws. She was brought into the silica project by the BC Construction Safety Alliance when the province brought out tough new standards for employees working around silica. Silica is the dust, which is created when rocks, cement, concrete, or asphalt are ground, drilled, cut, or broken. When breathed into lungs, it can cause lung hardening through scar tissue encapsulating the particles or lead to lung cancer. The construction industry found the new regulations difficult to implement and some kind of tool or guide was needed to measure dust exposure levels and make preventative recommendations. "My role kind of morphed into project management," she said, as the BCCSA set out to finance the development of the tool, the first of its kind in Canada. The project involves gathering exposure levels from different tasks and also ensuring when pre- ventative measures are set out they meet the requirements of WorkSafeBC, another partner in the tool's development. "It is really a three-party initiative," said Harwood, adding her role provides an arm's length relationship from each party and balance to ensure the goals are not going off track. Lawyers are trained in analytical skills, she said, and that helps keep all parties on track to ensure they are meeting the regulations at the end of the day. Once the data has been gathered, it will be input into a mobile application that contractors on site anywhere in B.C. can access. They will determine the task from drop-down menus and get an average exposure level and then preventative measures that should be taken for employees performing the task. The tool is expected to be available some time in 2016. The BCCSA estimates there are more than 380,000 employees, mainly construc- tion workers, exposed to silica every year. — JS HARWOOD HEADING UP PROJECT TO DEVELOP SILICA TOOL Nancy Harwood The proposed changes to the Motor Vehicle Act can be found on the government web site: https://www.leg.bc.ca/40th4th/1st_ read/gov15-1.htm

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