HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Section 46 of the Workers Compensation Act, R.S.B.C. 1996, c. 492, is repealed and the following substituted:

Power to restrain industry if employer defaults

46  (1) The Supreme Court may make an order under subsection (2) if

(a) an employer defaults in the payment of an assessment,

(b) an execution, issued on a judgment entered with respect to the assessment, is returned with a certificate from a sheriff or the sheriff's deputy that he or she was unable wholly to satisfy the execution, and

(c) an industry, or an activity in an industry, within the scope of this Part is commenced or continues to be carried on by one or more of the following persons:

(i) the judgment debtor;

(ii) if the judgment debtor is a company, within the meaning of the Business Corporations Act, an individual who is a member of the board of directors of the judgment debtor as a result of having been elected or appointed to that position;

(iii) if the judgment debtor is a corporation other than a company, within the meaning of the Business Corporations Act, a person who is a member of the board of directors or other governing body of the judgment debtor, regardless of the title by which that person is designated;

(iv) the chair or any vice chair of the board of directors or other governing body of the judgment debtor, if that chair or vice chair performs the functions of the office on a full-time basis, regardless of the title by which that person is designated;

(v) the president of the judgment debtor, regardless of the title by which that person is designated;

(vi) any vice president in charge of a principal business unit of the judgment debtor, including sales, finance or production, regardless of the title by which that person is designated;

(vii) any officer of the judgment debtor, whether or not the officer is also a director of the judgment debtor, who performs a policy-making function in respect of the judgment debtor and who has the capacity to influence the direction of the judgment debtor, regardless of the title by which that person is designated;

(viii) a person who is not described in any of subparagraphs (ii) to (vii) of this paragraph but who performs the functions described in any of those subparagraphs, and who participates in the management of the judgment debtor, other than a person who

(A) participates in the management of the judgment debtor under the direction or control of a shareholder or a person described in any of subparagraphs (ii) to (vii),

(B) is a lawyer, accountant or other professional whose primary participation in the management of the judgment debtor is the provision of professional services to the judgment debtor,

(C) is, if the judgment debtor is bankrupt, a trustee in bankruptcy who participates in the management of the judgment debtor or exercises control over its property, rights and interests primarily for the purposes of the administration of the bankrupt's estate, or

(D) is a receiver, receiver manager or creditor who participates in the management of the judgment debtor or exercises control over any of its property, rights and interests primarily for the purposes of enforcing a debt obligation of the judgment debtor.

(2) In the circumstances described in subsection (1), the Supreme Court, on an application made on behalf of the Board, without the commencement of an action, may make an order restraining one or more persons described in subsection (1) (c) (i) to (viii) from carrying on an industry, or an activity in an industry, within the scope of this Part until the amount due on the execution, all the assessments made by the Board and the costs of the application are paid.

2 Section 81 is amended

(a) in subsection (1) (a) by striking out "7" and substituting "9",

(b) in subsection (1) (a) by striking out "and" at the end of subparagraph (vi) and by adding the following subparagraphs:

(vii) one director who is or was a professional in the area of law or law enforcement;

(viii) one director who is or was a professional in the area of occupational health and safety, and ,

(c) in subsection (2) by striking out "and" at the end of paragraph (c) and by adding the following paragraphs:

(e) under subsection (1) (a) (vii), select a person from a list of at least 3 persons, each of whom is nominated by one or more organizations for professionals in law or law enforcement, and

(f) under subsection (1) (a) (viii), select a person from a list of at least 3 persons, each of whom is nominated by one or more organizations that provide occupational health and safety services. , and

(d) by adding the following subsection:

(10) In this section, "law enforcement" means

(a) policing, including criminal intelligence operations,

(b) investigations that lead or could lead to a penalty or sanction being imposed, or

(c) proceedings that lead or could lead to a penalty or sanction being imposed.

3 Section 96.2 (3) is repealed and the following substituted:

(3) A request for a review must be filed,

(a) if a time period with respect to the type of decision or order to be reviewed is prescribed by regulation of the Lieutenant Governor in Council, which prescribed time period must be less than 90 days, within that time period, or

(b) if a time period is not prescribed as set out in paragraph (a), within 90 days after the Board's decision or order is made.

4 Section 96.4 (6) is repealed and the following substituted:

(6) After taking into account any applicable period of suspension under subsection (5), the review officer must make a decision on a review,

(a) if a policy of the board of directors establishes a time period that is less than 150 days after the Board receives a request for review, which time period may be different for different types of decisions or orders, within that time period, or

(b) if a time period is not established as set out in paragraph (a) of this subsection, within 150 days after the Board receives the request for review.

5 Section 106 is amended in paragraph (a) of the definition of "hazardous substance" by striking out "controlled product" and substituting "hazardous product".

6 Section 158 (2) (j) is amended by striking out "material".

7 Section 173 (1) is amended by striking out "must immediately undertake an investigation into the cause of any accident" and substituting "must conduct a preliminary investigation under section 175 and a full investigation under section 176 respecting any accident".

8 Section 174 (2) is repealed.

9 Sections 175 and 176 are repealed and the following substituted:

Preliminary investigation, report and follow-up action

175  (1) An employer must, immediately after the occurrence of an incident described in section 173, undertake a preliminary investigation to, as far as possible,

(a) identify any unsafe conditions, acts or procedures that significantly contributed to the incident, and

(b) if unsafe conditions, acts or procedures are identified under paragraph (a) of this subsection, determine the corrective action necessary to prevent, during a full investigation under section 176, the recurrence of similar incidents.

(2) The employer must ensure that a report of the preliminary investigation is

(a) prepared in accordance with the policies of the board of directors,

(b) completed within 48 hours of the occurrence of the incident, and

(c) provided to the Board on request of the Board.

(3) Following the preliminary investigation, the employer must, without undue delay, undertake any corrective action determined to be necessary under subsection (1) (b).

(4) If the employer takes corrective action under subsection (3), the employer, as soon as practicable, must

(a) prepare a report of the action taken, and

(b) either

(i) provide the report to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post the report at the workplace.

Full investigation, report and follow-up action

176  (1) An employer must, immediately after completing a preliminary investigation under section 175, undertake a full investigation to, as far as possible,

(a) determine the cause or causes of the incident investigated under section 175,

(b) identify any unsafe conditions, acts or procedures that significantly contributed to the incident, and

(c) if unsafe conditions, acts or procedures are identified under paragraph (b) of this subsection, determine the corrective action necessary to prevent the recurrence of similar incidents.

(2) The employer must ensure that a report of the full investigation is

(a) prepared in accordance with the policies of the board of directors, and

(b) submitted to the Board within 30 days of the occurrence of the incident.

(3) The Board may extend the time period, as the Board considers appropriate, for submitting a report under subsection (2) (b).

(4) Following the full investigation, the employer must, without undue delay, undertake any corrective action determined to be necessary under subsection (1) (c).

(5) If the employer takes corrective action under subsection (4), the employer, as soon as practicable, must

(a) prepare a report of the action taken, and

(b) either

(i) provide the report to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post the report at the workplace.

10 The following section is added to Division 12 of Part 3:

Compliance agreements

186.1  (1) The Board may enter into an agreement with an employer if the Board considers that

(a) the employer has contravened, or failed to comply with, a provision of this Part or the regulations,

(b) the employer has not contravened, or not failed to comply with, the same provision described in paragraph (a) within the 12 month period immediately preceding the contravention or failure as set out in that paragraph,

(c) the health or safety of workers, for which the employer has responsibilities under this Act, is not at immediate risk, and

(d) entering into the agreement is appropriate in the circumstances.

(2) An agreement entered into under subsection (1)

(a) must be in writing,

(b) must describe one or more actions the employer agrees to take, which may include one or more expenditures the employer agrees to make, to remedy the employer's contravention or failure as set out in subsection (1) (a) or the adverse effects that resulted from that contravention or failure,

(c) must set out the time frame within which the employer, with respect to each action described under paragraph (b) of this subsection, agrees to

(i) take the action, and

(ii) report to the Board on the action taken,

(d) must specify the date the agreement ends,

(e) must set out the required manner, form and content of the report referred to in paragraph (c) (ii) of this subsection, and

(f) may, subject to subsection (4), be amended if agreed to by the Board and the employer.

(3) The employer must, as soon as practicable after

(a) entering into an agreement under subsection (1),

(i) provide a copy of the agreement to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post a copy of the agreement at the workplace, and

(b) reporting to the Board under subsection (2) (c) (ii),

(i) provide a copy of the report to the joint committee or worker health and safety representative, as applicable, or

(ii) if there is no joint committee or worker health and safety representative, post a copy of the report at the workplace.

(4) The Board must rescind an agreement entered into under subsection (1) if the Board considers that

(a) the employer has failed to

(i) take any of the actions described under subsection (2) (b) within the time frame set out for the action in subsection (2) (c) (i), or

(ii) report to the Board within the time frame set out in subsection (2) (c) (ii),

(b) the employer intentionally provided false or misleading information in relation to the agreement, or

(c) the health or safety of workers is at immediate risk, based on information received by the Board after the agreement was entered into.

(5) The Board may rescind an agreement entered into under subsection (1) if the Board considers that the agreement no longer adequately protects the health or safety of workers.

(6) A rescission of an agreement under subsection (4) or (5) takes effect immediately despite the employer not having received notice.

(7) As soon as practicable after rescinding an agreement under subsection (4) or (5), the Board must

(a) make reasonable efforts to provide verbal notice of the rescission to the employer, and

(b) send written notice of the rescission to the employer.

(8) Section 221 (4) to (6) does not apply to the sending of written notice under subsection (7) (b).

(9) The employer must, as soon as practicable after receiving written notice under subsection (7) (b),

(a) provide a copy of the written notice to the joint committee or worker health and safety representative, as applicable, or

(b) if there is no joint committee or worker health and safety representative, post a copy of the written notice at the workplace.

11 Section 191 is amended

(a) by repealing subsection (1) and substituting the following:

(1) The Board, in accordance with subsection (1.1), may order that

(a) work at a workplace or any part of a workplace stop until the order to stop work is cancelled by the Board, and

(b) if the Board considers this is necessary, the workplace or any part of the workplace be cleared of persons and isolated by barricades, fencing or any other means suitable to prevent access to the area until the danger is removed.

(1.1) The Board may make an order under subsection (1)

(a) if the Board has reasonable grounds for believing there is a high risk of serious injury, serious illness or death to a worker at the workplace, or

(b) if

(i) an employer

(A) has failed to comply with a provision of this Part or the regulations, and

(B) within the 12 month period immediately preceding the failure to comply as set out in clause (A), has failed to comply with

(I) the same provision described in clause (A), and

(II) an order respecting the failure to comply described in subclause (I), and

(ii) the Board has reasonable grounds for believing there is a risk of serious injury, serious illness or death to a worker at the workplace.

(1.2) If the Board makes an order under subsection (1), the Board, with respect to another workplace or any part of another workplace whose employer is the same as the employer at the workplace or any part of the workplace in respect of which the order under subsection (1) was made, may make an order, in accordance with subsections (1.3) and (1.4),

(a) that

(i) work at the other workplace or any part of the other workplace stop until the order to stop work is cancelled by the Board, and

(ii) if the Board considers this is necessary, the other workplace or any part of the other workplace be cleared of persons and isolated by barricades, fencing or any other means suitable to prevent access to the area until the danger is removed, or

(b) prohibiting the employer from starting work at the other workplace or any part of the other workplace.

(1.3) The Board may make an order under subsection (1.2) if the Board has reasonable grounds for believing,

(a) with respect to an order made under subsection (1.2) (a), that, at the other workplace or any part of the other workplace in respect of which that order is made, the same or similar unsafe working or workplace conditions exist as at the workplace or any part of the workplace in respect of which the order under subsection (1) was made, or

(b) with respect to an order made under subsection (1.2) (b), that, at the other workplace or any part of the other workplace in respect of which that order is made, the same or similar unsafe working or workplace conditions would exist as at the workplace or any part of the workplace in respect of which the order under subsection (1) was made.

(1.4) In making an order under subsection (1.2), the Board is not required to specify the address of the other workplace or any part of the other workplace in respect of which the order is made. , and

(b) in subsection (2) by striking out "subsection (1) (b)," and substituting "subsection (1) (b) or (1.2) (a) (ii),".

12 Section 196 is amended

(a) in subsection (1) by striking out "impose an administrative penalty on an employer under this section if it considers that" and substituting "impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities that",

(b) in subsection (3) by striking out "must not be imposed under this section if an employer" and substituting "under this section must not be imposed on an employer if the employer establishes that the employer",

(c) in subsection (6) by striking out "a review under section 96.2" and substituting "a review requested under section 96.2", and

(d) in subsection (7) by striking out "is imposed on an employer under this section," and substituting "under this section is imposed on an employer,".

13 The following section is added:

Administrative penalties – lower maximum amount

196.1  (1) The Board may, by order, impose on an employer an administrative penalty prescribed by a regulation of the Board, which penalty must not be more than $1 000, if the Board is satisfied on a balance of probabilities that the employer has failed to comply with a provision of this Part, or the regulations, as specified by a regulation of the Board.

(2) If an employer requests under section 96.2 a review of a decision made under subsection (1) of this section, the employer must

(a) post a copy of the request for review at the workplace to which the administrative penalty relates,

(b) provide a copy of the request for review to the joint committee or worker health and safety representative, as applicable, and

(c) if the workers at the workplace to which the administrative penalty relates are represented by a union, provide a copy of the request for review to the union.

(3) An employer who has been ordered to pay an administrative penalty under this section must pay the amount of the penalty to the Board for deposit into the accident fund.

(4) If an administrative penalty under this section is reduced or cancelled by a Board decision, or on a review requested under section 96.2, the Board must refund the required amount to the employer out of the accident fund.

14 Section 198 (1) is repealed and the following substituted:

(1) On application of the Board and on being satisfied that there are reasonable grounds to believe that a person

(a) has contravened or is likely to contravene this Part, the regulations or an order, or

(b) has failed to comply with, or is likely to fail to comply with, this Part, the regulations or an order,

the Supreme Court may grant an injunction,

(c) in the case of paragraph (a), restraining the person from continuing or committing the contravention,

(d) in the case of paragraph (b), requiring the person to comply, or

(e) in the case of paragraph (a) or (b), restraining the person from carrying on an industry, or an activity in an industry, within the scope of Part 1 for an indefinite or limited period or until the occurrence of a specified event.

(1.1) For the purposes of granting an injunction respecting a person under subsection (1) (e), a person includes the following:

(a) an individual who is a member of the board of directors of a company as a result of having been elected or appointed to that position;

(b) a person who is a member of the board of directors or other governing body of a corporation other than a company, regardless of the title by which that person is designated;

(c) the chair or any vice chair of the board of directors or other governing body of a corporation, if that chair or vice chair performs the functions of the office on a full-time basis, regardless of the title by which that person is designated;

(d) the president of a corporation, regardless of the title by which that person is designated;

(e) any vice president in charge of a principal business unit of a corporation, including sales, finance or production, regardless of the title by which that person is designated;

(f) any officer of a corporation, whether or not the officer is also a director of the corporation, who performs a policy-making function in respect of the corporation and who has the capacity to influence the direction of the corporation, regardless of the title by which that person is designated;

(g) a person who is not described in any of paragraphs (a) to (f) of this subsection but who performs the functions described in any of those paragraphs, and who participates in the management of a company or corporation, other than a person who

(i) participates in the management of the company or corporation under the direction or control of a shareholder or a person described in any of paragraphs (a) to (f),

(ii) is a lawyer, accountant or other professional whose primary participation in the management of the company or corporation is the provision of professional services to the corporation,

(iii) is, if the company or corporation is bankrupt, a trustee in bankruptcy who participates in the management of the company or corporation or exercises control over its property, rights and interests primarily for the purposes of the administration of the bankrupt's estate, or

(iv) is a receiver, receiver manager or creditor who participates in the management of the company or corporation or exercises control over any of its property, rights and interests primarily for the purposes of enforcing a debt obligation of the company or corporation.

(1.2) For the purposes of subsection (1.1), "company" and "corporation" have the same meaning as in the Business Corporations Act.

15 Section 225 (2) is amended by adding the following paragraph:

(f.1) for the purposes of section 196.1, prescribing administrative penalties or schedules of administrative penalties, any penalty of which must not be more than $1 000, but which penalties or schedules of penalties may

(i) vary according to the nature or frequency of the failure to comply or the number of workers affected by any failure to comply, or

(ii) provide for greater penalties for a second penalty and for third or subsequent penalties in a 3 year period or any other period that may be prescribed; .

Commencement

16  The provisions of this Act referred to in column 1 of the following table come into force as set out in column 2 of the table:

 
Explanatory Notes

SECTION 1: [Workers Compensation Act, section 46] expands the list of persons the court may, by order, restrain from carrying on an industry, or an activity in an industry, as described in this section.

SECTION 2: [Workers Compensation Act, section 81]

• increases the number of directors of the Board;
• sets out specific qualifications each additional director must have;
• adds a definition as set out.

SECTION 3: [Workers Compensation Act, section 96.2] provides that if a time period of less than 90 days is prescribed by the Lieutenant Governor in Council, a person must file the person's request for a review within that time period.

SECTION 4: [Workers Compensation Act, section 96.4]

• clarifies that if a policy of the board of directors establishes a time period that is less than 150 days as described, the review officer must make a decision within that time period;
• allows different time periods to be established.

SECTION 5: [Workers Compensation Act, section 106] is consequential to amendments made to the Hazardous Products Act (Canada).

SECTION 6: [Workers Compensation Act, section 158] is consequential to amendments made to the Hazardous Products Act (Canada).

SECTION 7: [Workers Compensation Act, section 173] is consequential to the repeal and replacement by this Bill of sections 175 and 176 of the Act.

SECTION 8: [Workers Compensation Act, section 174] is consequential to the repeal and replacement by this Bill of sections 175 and 176 of the Act.

SECTION 9: [Workers Compensation Act, sections 175 and 176] sets out the requirements for preliminary investigations and full investigations by an employer.

SECTION 10: [Workers Compensation Act, section 186.1] authorizes the Board to enter into compliance agreements with an employer in the specified circumstances and sets out the requirements respecting compliance agreements.

SECTION 11: [Workers Compensation Act, section 191] expands the circumstances in which the Board may make an order to stop work under this section.

SECTION 12: [Workers Compensation Act, section 196]

• clarifies that an administrative penalty is imposed under this section;
• sets out the standard of proof of an administrative penalty imposed under this section;
• clarifies that an employer bears the onus of establishing the defence of due diligence;
• clarifies that a review is requested under section 96.2 of the Act.

SECTION 13: [Workers Compensation Act, section 196.1] authorizes the Board to impose on an employer an administrative penalty as set out.

SECTION 14: [Workers Compensation Act, section 198] authorizes the Supreme Court to grant an injunction restraining a person as set out from carrying on an industry, or an activity in an industry.

SECTION 15: [Workers Compensation Act, section 225] authorizes the Board to prescribe administrative penalties or schedules of administrative penalties, including varying the amounts of the penalties as set out, and providing for escalating penalties as set out.