WCAT overturns a “grossly disproportionate” WorkSafeBC penalty for a trenching violation
When is an administrative penalty just too much? In a recent win for Hooper Law, the Workers Compensation Appeal Tribunal held that WorkSafeBC’s penalties should match the employer’s moral blameworthiness, tossing a $150,000 penalty for a violation that posed no actual risk to workers.
The Facts
The case involved an employer that was experienced in excavation matters. The employer was retained to install water mains on a housing project. The water mains were intended to be laid less than 4 feet deep. The employer had policies and procedures around ensuring excavations over 4 feet were properly sloped or shored before any worker was permitted to enter them, as required. The employer also regularly performed spot inspections to ensure compliance with those requirements. The employer instructed the foreman on the project the night before the incident to ensure compliance with those requirements the following day.
On the day of the incident, the foreman supervised the excavation work to ensure compliance. The foreman briefly left to attend to another matter and returned to find that the excavation had been dug to 5 feet. The foreman advised that the trench needed to be sloped if it was over 4 feet. The foreman jumped into the trench to point out where the sloping had to start. A WorkSafeBC Officer saw the foreman in the trench and issued an order against the employer under section 20.81 of the Occupational Health and Safety Regulation, one of WorkSafeBC’s “designated high-risk" violations. The Officer subsequently issued a $150,000 penalty against the employer.
The Appeal
The employer retained Hooper Law to appeal. Learn more about the appeal process.
At WCAT, we presented expert evidence on the soil conditions in the excavation which confirmed that there was no risk to the workers that the trench was going to collapse. The expert testified that the soil conditions were glacial till and at 5 feet vertical posed no risk to workers.
In cross-examination, the Officer confirmed that he only issued the penalty because of his interpretation of “general deterrence”. General deterrence requires assessing what message the penalty to the specific employer would send to the broader community.
Given the absence of risk to workers combined with the employer’s exemplary approach to occupational health and safety, we argued that the $150,000 penalty was inappropriate as a matter of general deterrence. Instead, a $150,000 penalty against the employer sends the message to other employers that penalties will be issued regardless of concerted health and safety efforts.
In A2001695 (Re), 2021CanLII 142321 (BC WCAT), which WCAT has designated one of its “noteworthy decisions”, a WCAT Vice Chair agreed and set aside the entire penalty. The Vice Chair outlined the history of general deterrence in the common law, including the need to assess the proportionality of the punishment relative to the conduct at issue. The Vice Chair held that this principled approach should also apply to WorkSafeBC’s penalties, stating:
In my view, the language and structure of the Board’s penalty policy ... support a similarly principled approach to assessing the appropriateness of a monetary penalty. The fact that policy gives the decision-maker discretion to assess the appropriateness of a penalty in a given case, after considering the various factors listed, empowers the decision-maker to consider all of the circumstances, including the “blameworthiness” of the employer and the seriousness of the infraction, and then determine whether a monetary penalty is appropriate. Since monetary penalties are based upon the employer’s assessable payroll, they can result in substantial amounts, as in this case, where a momentary lapse of judgment on the part of Mr. M (following a non-compliant excavation by the crew), which did not result in any injury to anyone, could potentially attract a penalty of approximately $75,000 or $150,000, depending upon whether the violation is deemed to be high risk or not.
Therefore, as a matter of proportionality, I find that a monetary penalty for this particular violation would, in all of the circumstances, be grossly disproportionate to the firm’s actions and to the overall “moral blameworthiness” of the employer in this incident. ...
The Vice Chair cancelled the penalty. As a result, the employer received the $150,000 penalty amount back as well as their COR rebate, worth approximately $100,000, which WorkSafeBC had withheld because of the penalty.
Is WorkSafeBC’s policy on “high-risk” violations unreasonable?
The case also raised an unsettled issue around WorkSafeBC’s policy for designated high-risk violations. WCAT is required to apply WorkSafeBC’s policies in making its decisions but may refer policies to WorkSafeBC’s board of directors if it determines a particular policy to be “patently unreasonable”.
WorkSafeBC treats certain violations as “high-risk”. High-risk violations may be automatically considered for penalties and will also lead to a doubling of the penalty amount. In this case, what was a $75,000 penalty was then doubled to $150,000 because the violation was deemed to be high-risk even where the evidence showed it was not.
Formerly, WorkSafeBC’s policy on high-risk violations only presumed certain violations to be high-risk, leaving room for the employer to rebut that presumption with evidence. The current version of the policy, however, appears to remove the employer’s ability to rebut the presumption. This means that certain violations are being treated as high-risk even in the face of evidence to the contrary. On the appeal, we argued that the new policy was patently unreasonable. While the Vice Chair did not need to address this issue, as he set aside the penalty on other grounds, he agreed that there appeared to be a problem with WorkSafeBC’s policy, stating:
[84] ... if ... the current version policy item P2-95-2 has eliminated the ability for employers to rebut a designation of high risk in the case of designated violations ... then this case appears to be a strong example of the apparent unfairness of such a policy. The only evidence before me … [showed] there was no risk of the trench collapsing and potentially injuring a person standing in the trench. Therefore, to simply accept that this violation created a high risk of injury or death to workers, without considering the expert evidence before me which supports a contrary conclusion, seems, on an intuitive level, to be unfair to the employer. Therefore, if the decision on this appeal were to turn upon whether the July 16, 2019 violation created a high risk of injury, then I would be inclined to a) undertake a purposive review of the policy to determine if, in fact, the ability to rebut the designation of high risk through evidence has been eliminated; and b) possibly refer this question to the chair of WCAT for a determination under section 304 of the Act before proceeding to render a decision.
The Vice Chair also disagreed that it was clear that WorkSafeBC had removed the employer’s ability to rebut the presumption. While WorkSafeBC had intended to do so, the policy itself left some room for interpretation. The Vice Chair noted:
In my view, it remains an open question whether the current version of policy actually prohibits an employer from rebutting a designation of high risk if the evidence in a particular case suggests that the violation in question did not, in fact, create a risk of injury to workers.
The decision supports that it remains open to employers to argue that A) designated high risk remains rebuttable with evidence, and B) if the designation cannot be rebutted, that WorkSafeBC’s policy is patently unreasonable.
If you have received an administrative penalty from WorkSafeBC, contact us.
