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| Mike Hamata |
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| Tana Wang |
Davinder (Dave) Singh Gaday was formerly the director of D & G Hazmat Services Ltd., a business registered with the board to perform asbestos abatement. During its operations, the board sanctioned D & G with multiple occupational health and safety (OHS) orders, including 45 orders relating to potential high-risk operations, five stop-work orders and five administrative penalties. D & G ceased operations following an unsuccessful review of a stop work order issued on Oct. 9, 2018.
On July 6, 2018, 117095 B.C. Ltd. (117) registered with the board as an asbestos abatement company. Gaday was employed by 117. His aunt, Sharanjit Kaur, was the sole director. After its registration was cancelled on May 16, 2019, Gaday applied for renewal, claiming that 117 was not affiliated with D & G.
On Jan. 8, 2020, the board determined that D & G and 117 were related entities and that D & G’s history of OHS violations should be transferred to 117. The board also concluded that because they were effectively the same entity, the D & G stop work order applied to 117.
The board brought a petition for injunction against D & G and Gaday, seeking an order that the respondents were required to comply with the Workers’ Compensation Act, R.S.B.C. 2019, c.1 and the Occupational
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The BCSC declined to grant the injunction. The court found that Gaday had never personally been cited for violating the Act or the Regulation and that there was no evidence suggesting that he was unlikely to comply with the Act or the Regulation.
The board appealed to the British Columbia Court of Appeal. On appeal, the board argued that the lower court erred in law by improperly applying the factual test in s. 97(1) of the Act and by permitting a collateral attack on the board’s previous administrative decisions (which buttressed the evidentiary basis of the board’s proposed injunction).
The board also argued that the lower court incorrectly identified and applied the scope of its discretion on a s. 97 application and exercised that discretion based on impermissible considerations.
The Court of Appeal noted that assessing an application for an injunction from the board pursuant to s. 97(1) of the Act involves both a legal inquiry of what constitutes a breach and a factual inquiry into whether the respondents’ conduct provides reasonable grounds to believe that a breach occurred. This “reasonable grounds to believe” standard requires an evidentiary foundation beyond mere suspicion but less than proof on a balance of probabilities.
The Court of Appeal agreed with the board and found that the lower court’s reasoning amounted to permitting a collateral attack on the administrative decisions.
Each of the administrative decisions was potentially subject to the board’s internal review and WCAT appeal process and, ultimately, to a judicial review. Gaday unsuccessfully sought an internal review of the D & G stop-work order but took no other steps to challenge the administrative decisions in the proper forum. Despite his assertions that he was not challenging the validity of the administrative decisions, the Court of Appeal held that attacking the factual foundation of the administrative decisions amounted to a judicial review in disguise, constituting an impermissible collateral attack.
Moreover, the Court of Appeal found that the lower court committed a reviewable error in finding that there was no evidence that Gaday breached the OHS requirements, noting that the record, including the administrative decisions, was sufficient for the board to meet its evidentiary burden.
Turning to the issue of whether the judge erred in the exercise of his discretion to refuse to grant the injunctions, the Court of Appeal noted that the threshold for obtaining any statutory injunction is generally low, and it should only be refused under exceptional circumstances when a breach of an enactment is demonstrated. The court concluded that no such circumstances existed to permit the lower court to decline the proposed injunction against D & G.
Ultimately, the Court of Appeal allowed the appeal and granted the injunction sought by the Board against both D & G and Gaday.
Key takeaways/highlights:
- Once the factual test set out in s. 97(1) of the Act is met, a court has only limited discretion to deny a statutory injunction.
- An administrative decision may form the basis for later action by the board, including severe measures like an injunction preventing an entity from carrying on business. Businesses should take this into account in deciding whether to challenge administrative decisions at the time the decisions are made. To fail to do so means that unchallenged facts in an administrative decision cannot be later challenged in a subsequent proceeding.
- The proper channels for review and appeal must be followed to avoid the consequences of a collateral attack.
Mike Hamata is an employment and labour lawyer and a partner of Roper Greyell LLP in Vancouver. He practises in all areas of employment, labour and workplace human rights law and is a strong advocate for his employer and employee clients. He can be reached at mhamata@ropergreyell.com. Tana Wang is a summer articled student at Roper Greyell LLP. She is interested in all areas of labour and employment law.
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