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WORKPLACE HEALTH AND SAFETY - Offences and enforcement

Wednesday, February 17, 2021 @ 6:18 AM  

Appeal by Seattle Environment and its principal, Singh, from orders permanently enjoining them from engaging in the asbestos abatement industry and finding them both guilty of contempt of a 2012 court order prohibiting noncompliance with the Workers Compensation Act. The judge addressed 51 allegations of breaches of the Act and regulations at 21 different worksites over four years. The judge found Seattle and Mike Singh guilty of seven counts of contempt for breaching the 2012 order and 21 distinct breaches of the Act and regulations which warranted granting the permanent injunction. She imposed a suspended sentence on Mike Singh for contempt with one year’s probation, including six weeks of house arrest. The judge found the board failed to make out its case against Shawn Singh, and that, as the successful party, he was entitled to his costs on half of the matters before her. The judge concluded the board succeeded against Mike Singh and Seattle on a subset of the contempt allegations and in obtaining the permanent prohibition from participation in the industry, and that the board was therefore entitled to its costs against those parties for half of the matters before her. To simplify the costs award, she ordered all parties to bear their own costs.

HELD: Appeal allowed in part. The judge did not breach the appellants’ right to a fair hearing by refusing to grant their pre-hearing motions for additional cross-examination on affidavits and further production of documents. The judge’s decisions to grant only some of the additional cross-examination sought and to deny further document disclosure were discretionary and subject to deference on appeal. The judge was entitled to conclude that the appellants received all the information the board had concerning the particular breaches and contempt allegations and that the cross-examination to date, as supplemented by the further discovery she ordered, permitted the appellants to know and respond to the case against them. In finding them guilty of contempt, the judge was entitled to rely on evidence obtained by the board under its regulatory power to inspect and compel production of information. Determining whether evidence gathered using regulatory powers should be excluded from use in a criminal or quasi-criminal proceeding on the basis that it breached the subject’s Canadian Charter of Rights and Freedoms (Charter) rights required a contextual analysis of both the individual’s interest in not being compelled to self-incriminate and the public’s interest in the proper regulation and control of a licensed activity that had the potential to cause serious harm to people and the environment. The state’s information gathering in relation to regulatory offences was therefore subject to a lower standard of Charter scrutiny because it engaged different interests and a different level of compulsion. The judge below correctly applied a contextual approach. Even if a higher degree of Charter scrutiny should have been applied, the evidence relied on to support findings of contempt would not be construed as breaches of the Charter. The judge did not err in granting the broadest possible injunction to prohibit both Seattle and Mike Singh from carrying on in the asbestos abatement or inspection industry for an indefinite period. The house arrest imposed on Singh was not inconsistent with a suspended sentence. The sentence was also not excessive and reflected the judge’s understanding of the other negative impacts resulting from the breaches and injunction, and took into account Singh’s health concerns, which made a period of incarceration more challenging for him. The judge erred, however, in assuming that costs payable by the board to Shawn Singh offset the costs his father owed to the board. Shawn Singh was entitled to costs against the board for one-half of the proceedings, and the board was entitled to costs against Mike Singh and Seattle for one-half of those proceedings.

Workers’ Compensation Board of British Columbia v. Seattle Environmental Consulting Ltd., [2020] B.C.J. No. 2092, British Columbia Court of Appeal, L.A. Fenlon, S.A. Griffin and G.B. Butler JJ.A., December 17, 2020. Digest No. TLD-February152021004