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 O C T O B E R 2 0 1 5 13 \ AT L A N T I C \ C E N T R A L \ W E S T REGIONAL WRAP-UP Lawson Lundell partner Clifford Proudfoot, who represents employers in the resource sector, says he is also con- cerned about the new investigative pro- cess. "I fear that there are going to be false positives," he says, as employers do a quick 48-hour investigation and inter- view individuals who may feel remorse following an accident. "People say, 'If I had only done this," he notes, adding a more thorough investigation after the initial few days, when individuals have had to adjust to the trauma of it, often sheds more light on what was the actual cause of an incident. "The preliminary report may jump to conclusions too quickly." He says in the past employers were not under a time constraint to file an investigative report with WSBC, but usu- ally completed one within two to four weeks. Lawyers also have to be aware that the timeline for reviews of WSBC decisions have changed, says Pawluk. Corporate lawyers may find that time frame tight as the review request must be now launched within 45 days rather than the previous 90 days. "That may be difficult if your client works in a remote area and there is bad communications," she says. The WSBC amendment does allow for extensions. Proudfoot says the reduced time for reviews moves the time frame from one of the longest in Canada to one of the shortest. It makes the employer move faster, but it has little impact on the overall WSBC process. "Their internal process has been very slow," he says. "I don't think the backlog was with the employers. I don't know if the changes will address this." Under the increased powers granted to the WSBC, it can now apply to the courts to bar an individual from work- ing in an industry. Pawluk says she's waiting to see how this power is used and how the courts respond. "You could be depriving someone of their liveli- hood," she says, and courts would have to consider that carefully. Citations can be issued, coming into full force in 2016, although they are now used. They will carry a potential for a maximum $1,000 penalty. The changes under Bill 9 came for- ward in three waves. On May 14, the bill received Royal assent and triggered changes that gave the WSBC expanded stop-work powers, changed the employ- er incident investigation requirements, expanded injunction powers and made changes to proving due diligence. On Aug. 4, several provisions of Bill 9 were brought in by order-in-council. Compli- ance agreements became effective Sept. 15, as did the new review timeline. Two new WSBC board members were added to provide more expertise. The last wave, which deals with employer citations, will come into effect in early 2016. Here's a complete rundown of the changes: • Interim incident investigation - The employer must do a preliminary inves- tigation report in 48 hours and take remedial steps immediately with a full report in 30 days submitted to WSBC. • Interim stop-work order policy - Bill 9 lowers the criteria for issuing stop-work orders from "immediate risk" to "high risk" of injury, illness, or fatality, and the WSBC can now shut down multiple sites where the same conditions may be occurring. • Court injunctions - The WSBC board had the ability to apply to the B.C. Supreme Court for an injunction to either restrain a person (which includes corporate or individual employers, owners, supervisors, sup- pliers, workers, etc.) from contraven- ing the act. The new powers will also enable the court to grant an injunc- tion restraining a person from carry- ing on in an industry, or an activity indefinitely, or until a further order of the court. • Due diligence: s. 196 deals with administrative penalties and the board had previously the obligation to deter- mine that the employer failed to exer- cise due diligence. The amendment shifts the onus onto the employer to show due diligence was undertaken to prevent an incident. • Compliance agreements: Rather than issuing an order, the employer enters into an agreement to correct health and safety violations in a set time. Compliance agreements are only in effect for violations deemed non-risk. • Shortened timeline for reviews of WSBC decisions (relating to prevention orders and penalties, and claims costs levied under the act). The timeline is now 45 days, but it will remain at 90 days for reviews of claims and assess- ment unrelated to claim cost levies. • Additional board members: Two new members are being added, one who is or was an OH&S professional and the other a law or law enforcement profes- sional. • Citations: WSBC will be able to issue administrative penalties of up to $1,000 to employers for non-high-risk violations beginning in early 2016. Currently, the WSBC was consulting with industry regarding the fines and in October 2015 sought more input through public hearings. The amendments implement the rec- ommendations from Gordon Macatee's July 2014 WorkSafeBC Review and Action Plan, which addressed shortcomings in the investigation of two major sawmill fires in B.C. Macatee looked at prevention but also compliance issues. He advised that the WSBC needed more tools to escalate penalties on a graduated basis and harsher means of dealing with flagrant violators. He recommended the compliance agreements and citations as tools to faster address health and safety violation in the workplace and recommended enhanced injunction powers to stop repeat offenders from participating in the industry. "The most flagrant violators of OHS require- ments require a deterrent that exceeds any of the tools presently available," he said in his report. "There is a record of one opera- tor who has had several hundred orders written, penalties assessed that have not been paid, and has been in front of a judge for an injunction application, but this operator is still in business and putting worker health and safety at risk." — JEAN SORENSEN jean_sorensen@telus.net WorkSafeBC health and safety amendments now in eff ect Continued from page 11

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