WCAT overturns $153,000 penalty against prime contractor
Hooper Law recently obtained an order from the Workers Compensation Appeal Tribunal (“WCAT”) setting aside a $153,000 penalty WorkSafeBC had issued against a prime contractor. The case involved an alleged violation of the obligation to protect other employers’ workers. On appeal, we established that the prime contractor not only did not know about the unsafe condition at issue, but also had no reason to believe that the unsafe condition would arise.
Understanding an Employer’s duty to Another Employer’s Workers
While the case involved a prime contractor, the violation in issue was issued under the general duty provisions for an employer. Under the Workers Compensation Act, employers must ensure the health and safety of their own workers, but also have obligations towards other employers’ workers. These obligations come under section 21(1)(a)(ii) of the Workers Compensation Act, which states:
“Every employer must (a) ensure the health and safety of ... (ii) any other workers present at a workplace at which that employer's work is being carried out …”
The exact scope of section 21(1)(a)(ii) has been interpreted by past court decisions and is subject to WorkSafeBC policy. Generally, the duty will apply to any employer whose work is being carried out at a workplace. To determine if an employer has met that duty, however, requires considering the specific facts of each case, including the degree of control the employer has over the workplace in question.
WCAT Decision A2000885 sets aside a section 21(1)(a)(ii) violation and penalty
The case involved a prime contractor at a complex, multi-employer highway project. The prime contractor had constructed an excavation and a subcontractor’s workers then entered the excavation to complete certain work. About three weeks later, a WorkSafeBC officer inspected the workplace, and observed the subcontractor’s workers near a 12-foot vertical section of the excavation. WorkSafeBC cited the prime contractor for a violation under section 21(1)(a)(ii) of the Act, alleging that the firm had constructed the near vertical section and had therefore failed to protect the subcontractor’s workers. WorkSafeBC subsequently issued the administrative penalty.
Acting as counsel for the prime contractor, we appealed the decision to WorkSafeBC’s Review Division and then to WCAT. Learn more about the appeal process.
At a two-day WCAT oral hearing, we presented evidence, including expert evidence, that showed that our client had in fact cut a compliant excavation, with adequately sloped walls, and that it was only after the prime contractor had finished at the site that the excavation was modified to be near vertical. We presented evidence that this change occurred very near to the time of the WorkSafeBC inspection, and that it occurred without notice to the prime contractor.
In written reasons, the Vice Chair for WCAT accepted our argument that the prime contractor had not in fact violated section 21(1)(a)(ii), and set aside the penalty. The Vice Chair held that even though the firm was the prime contractor, that role did not automatically make it liable for health and safety breaches of another employer under section 21(1)(a)(ii). The Vice Chair explained:
In the appeal before me today, it is undoubtedly the case that the firm, as the prime contractor, maintained a certain degree of control over the worksite, and that its supervisors have an understanding of the legal requirements to conduct safe excavations. But the question is whether it also maintained a sufficient degree of control over the operations of C Company such that it also retained the safety obligations of “employer” in relation to the operations conducted by C Company. On this question, I accept that, as prime contractor and overall site supervisor, the firm was legally required to stay apprised of developments at the worksite and to regularly monitor the site to ensure that contractors were complying with the safety plans of the site. However, I am not persuaded that it also faced an obligation under section 21(1)(a)(ii) of the Act—on the facts of this case—which made it liable for the safety of all acts of excavation which C Company (or some other unidentified party) might have conducted, especially after the firm’s own crew had vacated the site.
Further, the Vice Chair accepted our arguments that the prime contractor exceeded the duty set out in WorkSafeBC policy on section 21(1)(a)(ii) and distinguished the case from a Court of Appeal decision on that section, Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396. The Vice Chair explained:
I agree with the firm’s counsel that the degree of control exercised by the firm over the site in this case was nowhere near the same as the degree of control exercised by Petro-Canada in relation to its franchised gas stations, as described in the Petro-Canada decision. I have found above that the firm was not aware that the vertical cut face had been excavated until the time of the Board inspection. The evidence of the Board officer, confirmed by the evidence of the firm, is that the firm’s site superintendent agreed with the Board officer during the inspection that the vertical cut face was “not good.” In other words, the firm’s site superintendent learned about the existence of the vertical cut face at the same time as the Board officer, and it was immediately apparent to him that this was an unacceptable situation which required immediate action to remedy. These facts satisfy me that if the firm had known about the vertical cut face prior to the Board inspection, it likely would have taken steps to ensure that the hazard was dealt with, and that workers would have been prevented from entering the area until the requirements of the Act and the Regulation had been satisfied. …
The Vice Chair found that the prime contractor had not violated its duty towards the subcontractor’s workers and cancelled the entire administrative penalty.
The case is a reminder for all employers not just of the importance of ensuring the health and safety of all workers, but also the importance of documentation. The prime contractor was able to establish that it had not constructed the non-compliant section in large part because of its excellent record keeping. This included maintaining daily site journals with photos showing the excavation as constructed by the prime contractor. This enabled us to show, on the appeal, that the prime contractor had complied with its obligations, as well as to narrow down when the excavation was modified by a third party.
If you or your clients have received an administrative penalty, contact us.
