By Norm Keith
Arthur Moore was hired by two individuals to do demolition work. Moore ran an asbestos abatement and drywall removal business under the name of A. M. Environmental. Among the services he offered was the removal of drywall from buildings that were identified for demolition. During the course of Moore’s business operations, numerous employees were repeatedly exposed to asbestos.
On August 26, 2010, the B.C. Workers’ Compensation Board obtained an injunction restraining Moore from continuing business in the asbestos abatement sector. He was also restrained from providing any hazardous material inspections, surveys or reports until further permitted.
Moore was personally served with the order on September 2, 2010. Despite this, Moore continued to operate in the demolition business under various other trade names. He apparently worked on anywhere from 15 to 16 demolition sites following the service of the court order.
The Workers’ Compensation Board brought contempt proceedings when Moore continued to do business in violation of the court order. The application judge found all the facts necessary for committal for contempt.
The judge, however, refused the application on the grounds that the reference to Moore as “doing business as A. M. Environmental” created an ambiguity and accordingly, could not find him guilty of contempt beyond a reasonable doubt.
The B.C. Workers’ Compensation Board appealed this decision. The Court of Appeal found Moore guilty of contempt of court and remitted the matter for sentencing. The court had held that there was no potential confusion in the naming of the person subject to the injunction, and that the evidence proved that Moore knew he was bound by the order regarding his trade name and business activity.
Although Moore apologized to the court for his breach of the order, and promised not to repeat his actions, the issue before the B.C. Superior Court was whether or not he should be sentenced to community service, rather than jail, for his contempt.
The B.C. Supreme Court sentenced Moore to 60 days imprisonment. The court said, “The contempt in this case is serious. While the court is reluctant to incarcerate individuals for breaches of its orders, it sometimes must do so. As noted by the Court of Appeal, Mr. Moore’s indifference to the lives and safety of his workers and his open defiance of the injunction requires a severe response.”
The court held that Moore’s efforts at rehabilitation, his apology and the fact that there was no evidence that he was continuing to conduct business in breach of the injunction were mitigating factors. This limited the length of period of time that he was to be imprisoned for 60 days.
This case makes it clear that health and safety is becoming more important across Canada. Failure to comply with the safety regulator will result in enforcement of health and safety orders.
If such enforcement efforts are not respected, then employers will be treated more harshly.
Although the legislative regime in many Canadian provinces is different than British Columbia, the message is the same. If you put workers at risk, and refuse to cooperate with a regulator, you risk imprisonment.
Norm Keith, an OHS lawyer and consultant, is a partner at Fasken in Toronto. He can be reached at (416) 868-7824 or firstname.lastname@example.org
, or visit www.ehslaw.ca
for more information.