In A Flash

New Report Proposes More Changes to WorkSafeBC Criminal Investigation Process

A report reviewing how WorkSafeBC responded to two fatal sawmill explosions in the province  proposes a new investigative process and the establishment of a confidential process for workers to report safety concerns.

The report, titled “WorkSafeBC and Government Action Review: Crossing the Rubicon” was prepared by Ms. Lisa Helps – a Vancouver criminal defense lawyer – and contains eleven recommendations that may be adopted by the current NDP government. When the Report was released, Trade unions immediately called for all of the recommendations to be implemented.

The recommendations include:

  • Introducing a “quasi-criminal” approach to investigations: Currently, WorkSafeBC starts with an investigation stage, and if they believe a prosecution may be necessary, a prosecution-type investigation starts. The report proposes to get rid of this “regulatory first, quasi-criminal second” model and initiate the prosecution-centred investigation first, when warranted.
  • Restructure the Fatal and Serious Incident Investigation Team: The report proposes that an independent, one-team model be adopted. Currently, one team is responsible for investigations into cause and prevention of incidents, and another team is responsible for conducting investigations that may lead to prosecution of employers that are not in compliance.
  • Remove charge approval from WorkSafeBC Board: This would mean that the team conducting an investigation into an incident would have the independence to decide whether there was enough evidence gathered to recommend to a Crown Prosecutor that charges be laid under the Workers Compensation Act, and then make such a recommendation to Crown Counsel. 
  • Amend the Workers’ Compensation Act to include search and seizure powers: This would give WorkSafeBC investigators the power to obtain a search warrant – over the telephone – without notice to the employer, in order to seize evidence and documents in relation to an investigation. The report also proposes giving them the power to test or take samples, and to obtain orders for employers to compel documents. These powers already exist for OHS officers in Alberta without a search warrant.   
  • Increase communication with police for certain Criminal Code offenses: The report proposes designating specific contacts within the regional police forces and RCMP to deal with workplace incidents under sections 217.1 and 218 of the Criminal Code (“Duty of persons directing work” and “Criminal negligence”). The report also proposes that a training policy be developed for Crown Prosecutors so that the laying of charges arising from workplace investigations is streamlined. 
  • Increase protection of workers who refuse unsafe work: Currently, a worker has a right to refuse unsafe work under the Occupational Health and Safety Regulations. The report proposes that any subsequent worker be notified of the prior worker’s work refusal, giving them the option to refuse also and then imposing a documentation process for that refusal. 
  • Stronger protection for workers who report safety infractions: The report calls for greater protection of anonymity for workers who contact WorkSafeBC in relation to concerns over safety violations. To achieve this, the report recommends having WorkSafeBC separate the caller’s personal information and store it in a separate, restricted database to ensure that the investigating officer or inspector does not know who initiated the call. However, we believe that this information would still have to be made available to the employer as part of disclosure if there was any regulatory action against them.
  • Victim Impact Statements and Publications: The report proposes use of victim impact statements and publication of facts relating to the commission of an offence or contravention as part of sentencing under certain sections of the Workers’ Compensation Act.

Given the trajectory of other legislative reform around workplace laws in B.C., employers should brace themselves for these proposals to be implemented in the near future.

The full report can be found here.

If you have any questions about this topic or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.

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