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CONTRIBUTION · 25th August 2012
Victor Lick
The Regional District Kitimat-Stikine (RDKS) chose to defy rather than comply. This leaves the MK Bay Marina patrons (and area residents) to pay an unnecessary fine, consultant fees and legal bills in the tens of thousands of dollars. Was this a result of poor advice or someone’s ego?

The RDKS chose to appeal WorkSafe B.C. orders and have lost that appeal. Complying with the Orders would have involved a low-cost safety upgrade some years ago. The RDKS ignored multiple Orders and therefore forced WSBC to levy a fine. It is appalling to think that the RDKS has such a blatant disregard for safety and human life.

There was a near-miss accident this past winter when an employee fell into the near freezing water while doing snow removal on the marina docks. Even so, the RDKS still chose to appeal the need for Re-boarding Ladders and Life Rings. The employee was young and strong enough to be able to struggle to his own rescue. This incident was not reported to WSBC by the RDKS as it should have been and it was not given adequate review when it happened; considering the gravity of the situation.

This incident took place right where the picture was taken with the missing ladder designated by the yellow marking. A senior Administrative staff member for the RDKS stood at this very spot on June 22, 2011 saying he did not think ladders were necessary and that he could get himself out of the water if he fell in. This was on a nice sunny summer day while he was touring the docks with the now defunct Function Committee for the marina and interested public.

RDKS has now lost its appeal! Now the cost has gone into the tens of thousands of dollars and the upgrades still have to be done. The upgrades would have been a miniscule cost in comparison.

What is a life worth? More than trying to defy WSBC!

Read a background report on this issue dated November 2011 Here

Find WSBC original reports, a Freedom of Information (FOI) request and more attached to this article dated January 2012 Here

Click Here to Read Decision at the WSBC

REVIEW DECISION

Review #’s R0141222 and R0141223

Re: Review Reference #: R0141222
Review of Administrative Penalty Order
Board Decision under Review: December 22, 2011
Review Reference #: R0141223
Review of Orders
Board Decision under Review: January 30, 2012
Date: July 3, 2012
Chief Review Officer: Pamela Cohen


The employer has requested a review of several orders and an administrative penalty order (the penalty) issued by the Workers’ Compensation Board (the “Board”), which operates as WorkSafeBC. The penalty was issued on an Inspection Report (IR), dated December 22, 2011, in relation to inspections during the summer of 2011. The orders were issued on an IR dated January 30, 2012 following a January 14, 2012 incident when a worker fell into the water.

The employer also initially requested that all of the orders and the penalty be stayed, and that no further enforcement proceedings, inspections, or other actions by Board Officers occur in relation to its marina operations until the jurisdiction of the Board is determined by the courts.

The Chief Review Officer’s authority to consider stay requests is pursuant to section 96.2(5) of the Workers Compensation Act (the "Act"). This decision deals only with the employer's request for a stay of the orders, and of the penalty.

Issue
Should a stay of the December 22, 2011 penalty, and of the January 30, 2012 orders, be granted?

Preliminary Issue
The employer, in addition to requesting a stay of the orders and of the penalty, has requested that no further enforcement, proceedings, inspections or other actions occur until the jurisdiction of the Board is determined by the courts. As the Chief Review Officer, I have no authority over the enforcement actions of Board officers who are charged with those functions, and no jurisdiction to grant the employer’s request with respect to further inspections or other proceedings.

Background
The employer operates a marina composed of a number of floating wharves for the use of recreational and commercial vessels. The Board has inspected the employer's workplace and has had extensive consultations with the employer regarding its obligations under the Act and under the Occupational Health and Safety Regulation (the "Regulation") since 2007. The employer’s position is, and has been, that the Board has no jurisdiction over its marina operations.

The Board advised the employer, on June 17, 2011, that a failure to comply with prior orders regarding ladder placement, and maintenance and design, would result in an administrative penalty.

On August 10, 2011, a Board officer inspected the employer's workplace and noted deficiencies with respect to ladder placement, maintenance and design, and life-saving devices. The Board officer stated that the employer had no intention to comply, despite a history of orders over a period of several years.

On December 22, 2011, the officer imposed an administrative penalty on the employer in the amount of $39,708.23 because of repeated contraventions of the Act and of the Regulation. The Officer noted that the employer felt the Board had no jurisdiction in its workplace, that ladders on the wharves posed a safety hazard to marine vessels, and that it had no intention to comply with Board orders.
On January 14, 2012, a worker fell into the water at the employer’s workplace while operating a snow blower. On January 30, 2012, a Board officer, after an investigation of that incident, cited the employer with contraventions of the Regulation regarding the lack of written rescue and evacuation procedures and working alone procedures, and contraventions of the Act regarding the requirement to undertake an investigation into the cause of the accident, and to provide a notice of compliance.

The employer requested a review of the penalty and of the January 30, 2012 orders, and requested a stay of all orders. The employer was asked for further reasons regarding its request for a stay, and it provided a submission on that matter dated May 22, 2012. The employer stated that the Board’s direction to add fixed ladders on the marine floats did not only decrease safety but additionally, created an increased safety risk to boaters using the marina. It stated that the requirement for fixed ladders would impair the ability of boaters to dock alongside the floats. The employer stated that it hired a marine risk assessment expert to conduct an evaluation of the marina and provide an expert report regarding the ladders and life-saving equipment on site. It stated the expert’s inspection had been conducted and that a report was being prepared. The employer stated that the current condition of the marina was safe for all workers and that there were three ladders to provide egress from the water, they were cleaned on a regular basis to ensure no excess accumulation

of marine growth, and that there were also adequate life ring stations at a number of locations and within a 50 meter radius of all danger areas. The employer also indicated it had submitted to the Board its working alone procedures and its rescue and evacuation procedures. It stated it did not want to expend the resources to install additional equipment at this time while the orders were under review, especially in light of the serious safety concerns regarding boaters docking at its marina, and pending its marine risk assessment report.

The employer also included a letter from its financial officer indicating that the administrative penalty would have a detrimental effect on the ability of the employer to keep its marina service on sound financial ground and would exacerbate a financially precarious situation as the marina portion of the employer's operations was in a deficit position and the penalty represented 15% of its annual payroll and 10% of its total operational costs. The employer stated the administrative penalty would cause undue hardship as there are currently no funds available to pay the penalty without further increasing its deficit.

The employer's stay reasons were sent to the Board officer who issued the orders and the administrative penalty. He stated that working alone procedures had been submitted and were documented as complying with the Regulation, but rescue and evacuation procedures had not been received. He also noted that a further inspection of June 5, 2012 indicated there were insufficient fixed ladders, and unacceptable accumulations of marine growth on the ladders. He also noted that previous wire ladders had been removed and he stated the facility was even less protected than it was before.

Reasons and Decision
I will first of all consider the applicant's request for a stay of the administrative penalty order. The applicant's position is that payment of the penalty would result in serious financial hardship to its marina operations.

Section 96.2(5) of the Act provides that, unless the Chief Review Officer decides otherwise, the filing of a request for a review does not operate as a stay or suspend the operation of the order under review. Item A.2.9.1 of the Review Division's Practices and Procedures provides that the Chief Review Officer will only grant stays in exceptional cases. It states that typically the most significant factor considered is whether compliance with the Board's decision prior to the Review Officer's decision would cause serious financial or other type of hardship to the employer. If that requirement is met, then consideration is given to whether a stay of the decision will undermine the purpose of the decision, for example, the maintenance of safe workplaces, and if so, whether this can be avoided by alternative interim measures. It states that regard will also be had to the employer's overall compliance history before and after the decision to impose the penalty, and that the Chief Review Officer may consider other relevant factors specific to a particular stay application.

In this case the employer argues economic hardship. It contends that its marina operations are supported by revenue raised through the sale of goods and services and all costs are funded through these revenues. It is currently in a deficit position due to major repairs and capital improvements over the past years. The employer also indicated there are no funds available to pay the penalty without further increasing the deficit.

The employer did not provide financial details of its marina operations, including the amount of its current deficit. It indicated that paying the penalty would increase its deficit and that local governments are not supposed to budget for deficits. The employer also did not provide any evidence of what the implications, if any, would flow from an increased deficit. As a result, I cannot conclude that the employer is unable to pay the penalty order pending a decision on the review without significant financial hardship.

One of the reasons for penalties is deterrence, and the issuing of a stay can in some instances compromise the deterrent effect and could send the wrong message to employers. In this case I find the purpose of an administrative penalty could be compromised if the employer is allowed to delay payment without some compelling reason for doing so.

Even if I was to find there was hardship, the next most important consideration is whether compliance with the Board's decision would undermine the purpose of the decision, that is, the safety of workers at this and at other workplaces. That is also a factor which is relevant to determining whether a stay of the orders is appropriate. The employer's position is that compliance may not in fact increase workplace safety and may in fact pose serious safety concerns. The employer however, provides little evidence on how compliance with the orders would endanger workers and result in a serious safety concern.

The employer contends that the current condition of its marina is safe for all workers on site. The employer indicates that they have commissioned a site specific marine risk assessment report, which has been conducted and is being prepared; however, the employer has not provided any details on the likely conclusions of that report with respect to the safety of its workers. Although the report may provide information on workplace safety, it should not be viewed as an alternative to complying with the Act and Regulation. I want to emphasize that compliance with the Act and the Regulation is not optional for the employer despite what its expert report may indicate regarding workplace safety, and if the employer’s position is that some different approach to a particular statutory obligation may improve workplace safety, it should have brought that up in its discussions with the Board, and considered applying for a variance to the obligation at issue, rather than refusing to comply.

I have also considered the employer's overall compliance history. I find that the employer's compliance history is poor, and there is little evidence that the employer ever intended to fully comply with the Act and the Regulation.

Stays are only granted in exceptional cases. I find that a stay pending a review of the merits of this case, would not result in any significant financial hardship to the employer, and more importantly, given the employer's history of non-compliance, I am not satisfied that the granting of a stay would not endanger safety in the workplace. Additionally, I find that a stay of the orders would also send the wrong message to this, and to other employers, that compliance with the Act and the Regulation is at the discretion of employers, and that if they disagree with an order, they can refuse to comply.

I find the employer has not established the grounds necessary to grant a stay of the administrative penalty order, or of the subsequent orders.

Conclusion
As a result of this review, I deny the employer's request for a stay of the penalty and of the January 30, 2012 orders.

Pamela Cohen
Chief Review Officer
Review Division
The time has come to reconsider our relationship the theRKD
Comment by Larry on 27th August 2012
Just maybe the time has come for Kitimat to leave
the Regional District and strike out on our own"""