COURT
OF APPEAL FOR BRITISH COLUMBIA

Citation:

Workers
  Compensation Board of British Columbia v. Seattle Environmental Consulting
  Ltd.,

2017 BCCA
  19

Date: 20170113

Docket: CA43492

Between:

Workers Compensation Board of British
Columbia

Appellant

Respondent on Cross-Appeal

(Petitioner)

And

Seattle Environmental Consulting Ltd.,
Mike Singh also known as Manoj Singh, and Shawn Singh

Respondents

Appellants on Cross-Appeal

(Respondents)

Before:

The
  Honourable Mr. Justice Frankel

The
  Honourable
Mr. Justice
  Harris

The
  Honourable
Mr. Justice
  Savage

On appeal from:  An order of the Supreme Court of British
Columbia,
dated February 26, 2016 (
Workers Compensation Board v. Skylite Building
Maintenance Ltd.
, 2016 BCSC 394, Vancouver Registry S125392).

Counsel for
  the Appellant:

Ben Parkin & Nicolas Bower

Counsel for
  the Respondents Mike Singh and Shawn Singh:

Sumandeep Singh

Place and
  Date of Hearing:

Vancouver, British Columbia

December 15, 2016

Place and
  Date of Judgment:

Vancouver, British Columbia

January 13, 2017

Written
  Reasons by:

The
  Honourable Mr. Justice Savage

Concurred
  in by:

The
  Honourable
Mr. Justice
  Frankel

The
  Honourable
Mr. Justice
  Harris

Table of Contents

Paragraph Range

I.      Introduction

[1] - [6]

II.     Preliminary
  Matters

[7] - [17]

A.  Representation by Director

[8] - [16]

B.  New Evidence

[17] - [17]

III.    Background

[18] - [63]

A.  Prior Proceedings

[19] - [31]

i.  Before Russell
  J. (2012)

[19] - [25]

ii.  Before Funt J. (2013)

[26] - [31]

B.
Proceedings Below

[32] - [48]

i.  Pleadings and
  Application

[32] - [36]

ii.  Response

[37] - [38]

iii.  Cross-application and Response

[39] - [41]

iv.  Evidence

[42] - [48]

C.  Decision of the Chambers Judge (Macintosh J.)

[49] - [61]

D.  Issues on Appeal

[62] - [63]

IV.    Workers
  Compensation Act

[64] - [76]

A.  The Act

[64] - [68]

B.  Occupational Health & Safety Regulation

[69] - [76]

V.     Discussion
  and Analysis

[77] - [106]

A.  Temporal Ambit of the 2012 Order

[81] - [84]

B.  Inherently Complex

[85] - [93]

C.  Cross-Referencing

[94] - [99]

D.  Vagueness

[100] - [102]

E.  General

[103] - [106]

VI.    Reply and
  Cross-Appeal

[107] - [125]

A.  The Order of Russell J.

[108] - [111]

B.  Bias

[112] - [116]

C.  Conduct of Counsel

[117] - [123]

D.  Costs

[124] - [125]

VII.   DISPOSITION

[126] - [127]

Summary:

The Workers Compensation Board obtained an interim order
under s. 198 of the Workers Compensation Act requiring the respondents to
comply with the Act and its Regulations. In an application to find the
respondents in contempt of that order, the chambers judge found the terms to be
insufficiently clear, and thus, could not support a finding of contempt. The
chambers judge also rejected the respondents claims of bias, discrimination,
and improper conduct of the Boards staff and counsel, and declined to make an
order for costs. Held: appeal allowed; cross-appeal dismissed. The matter
is remitted to the Supreme Court. The terms requiring compliance with the Act
and Regulation are not ambiguous or insufficiently clear so as to be incapable
of supporting a finding of contempt, given the nature of the statutory regime
for workplace safety and the procedural history. The chambers judge did not err
in dismissing the respondents serious and baseless claims, and did not err in
exercising his discretion to decline costs.

Reasons for Judgment of the Honourable
Mr. Justice Savage:

I.
Introduction

[1]

This appeal and
cross-appeal concern whether the breach of an order requiring individuals and a
business to comply with legislated health and safety requirements can found a
determination of contempt.

[2]

The respondent, Shawn
Singh, is in the asbestos survey business.  The respondents, Mike Singh and
Seattle Environmental Consulting Ltd., are in the asbestos abatement business.
Asbestos has been determined to be a dangerous carcinogenic substance that
requires special detection, handling, and abatement techniques.  As a result,
these businesses are highly regulated under British Columbia workplace safety
legislation.

[3]

As a result of significant non‑compliance with the
Workers
Compensation Act
, R.S.B.C. 1996, c. 492 [the
Act
], and the
Occupational
Health and Safety Regulation,
B.C. Reg. 296/97 (the
Regulation
),
the Workers Compensation Board (the Board) sought and obtained an order
under s. 198 of the
Act
requiring compliance with the
Act
and
Regulation
.  As a result of the respondents further alleged
breaches of the
Act
and
Regulation
, the Board sought an order
finding the respondents in contempt of court.

[4]

The Boards
application detailed the times, dates, and places of the incidents and the
specific provisions of the
Act
and
Regulation
alleged to have
been breached.  Two of the respondents did not appear to take issue with the
specific allegations of breach but alleged discrimination and other failings of
the Board in its application response.  One respondent filed an affidavit denying
the allegations.

[5]

The chambers judge,
Mr. Justice Macintosh, did not appear to take issue with the evidence led
by the Board, but held that the initial order requiring compliance with the
Act
and
Regulation
was overly broad and not sufficiently clear to be
enforceable by contempt.  He invited the Board to apply for other orders and
referred to s. 198(1)(e) of the
Act
.

[6]

The Board appeals the finding that the initial order could not found a
determination of contempt.  In their reply and cross-appeal, the respondents challenge
the order giving rise to the contempt proceedings, attack the conduct of
counsel for the Board, and argue that the judge showed bias.  For the reasons
that follow, I would allow the appeal and dismiss the cross-appeal.

II.
Preliminary
Matters

[7]

Prior to hearing
the merits of the appeal there were two preliminary matters on which this Court
was required to rule.  The first matter concerned the representation of the
corporate respondent (Seattle) by a director.  The second matter concerned an
application to adduce fresh evidence.

A.  Representation by Director

[8]

On December 8, 2016, Seattle filed a Notice of Intention to Act in
Person.  Up to that point, Seattle had been represented by counsel for the
individual respondents.  All of the respondents had filed a joint factum some months
earlier.  Before us, Mr. Gerhard Pyper sought leave to address the Court
on behalf of Seattle
qua
director.  Mr. Pyper advised the Court that
he had been a director of Seattle for some months.  The Board opposed the
application on the basis that Seattles representation by Mr. Pyper was neither
necessary nor proper.

[9]

The Court noted
certain relevant decisions related to Mr. Pyper:
Pyper v. The Law
Society of British Columbia
, 2016 BCSC 2090; a related proceeding,
Singh
v. Nielsen
, 2016 BCSC 2331; and a disciplinary decision of the Law Society
of British Columbia:
Re Pyper
, 2016 LSBC 1.

[10]

It is apparent
that Mr. Pyper was a practicing lawyer but is not currently licenced to
practice law in British Columbia.  In the Law Society proceeding (2016 BCSC
2090), Mr. Pyper sought,
inter alia
, an order of mandamus that the
Law Society reinstate Mr. Pyper as a practicing lawyer.  That application
was dismissed.  We are advised that the decisions in the Law Society
proceedings are under appeal.

[11]

Mr. Pyper,
qua
director, has represented Seattle and the individual respondents in an action
against counsel and various employees of the Board.  With respect to the merits
of that proceeding, Mr. Justice Verhoeven said this:

[18]      In
broad terms, the application to disqualify counsel is based upon alleged
professional misconduct on the part of Mr. Parkin and Mr. Bower in
their capacity as counsel for the Board in the prior proceedings. The
plaintiffs allegations are contained in their Notice of Application and in the
affidavit in support sworn by Mike Singh on November 10, 2016. In essence,
Mike Singh and the applicants allege that Mr. Parkin and Mr. Bower
deceived and misled the court in their submissions before Dley J. and
Macintosh J. It is alleged that they were deceitful and deceptive,
particularly in their characterization of the previous proceedings and the
Russell J. order.

[19]      As
an example only, it is alleged that Mr. Parkin failed to inform Dley J.
that the Russell J. order was interim and was made by consent. The nature
of the order as an interim order is apparent on its face. The order does not
state that it was made by consent but that is of no consequence as it does not
affect its enforceability.

[20]      There
is no need for me to describe the allegations in detail. I have reviewed them
and determined that there is no merit whatsoever to them. In my view the real
purpose of this application has indeed, as argued, been to delay and frustrate
the hearing of the application brought by the defendants. The application was
brought as a tactical measure for improper motives.  The application is
not in good faith. The conduct of the plaintiffs in bringing the application
is, in my view, similar to that already remarked upon by Mr. Justice
Macintosh in his reasons for judgment arising out of the February hearing.

[12]

In that proceeding,
Mr. Justice Verhoeven described the representation of Seattle by Mr. Pyper
thus:

[36]      There
is another matter I wish to address, and that is the representation of Seattle
by Mr. Pyper.

[37]      No
position was taken on behalf of the defendants with respect to Mr. Pypers
right of audience. I was told at the outset of the application that Mr. Pyper
is a director of Seattle and that Seattle is otherwise unrepresented. During
the course of the hearing of the application I learned that Mr. Pyper is,
in fact, former counsel for Seattle, and that he was previously but is not now
a member of the Law Society of British Columbia. At the end of the day
yesterday I was provided with an affidavit from the principal of Seattle, Mike
Singh, which I read after court. Mr. Singh says in that affidavit at
paragraph 11:

The
relentless attacks by WorkSafe [have] pushed Seattle to represent itself. I
have appointed a new director in September 2016 to help me to prepare the
paperwork and speak for Seattle in the Court. I attach as Exhibit A [a]
corporate search of Seattle.

[38]      The
corporate record search shows that Mr. Pyper is a director of Seattle.

[39]      The
circumstances suggest to me that Mr. Pyper was appointed in order to allow
him to represent the company very much as a lawyer and a member of the Law
Society would do. As I said, no objection was taken by the defendants and for
that reason the issue was not addressed. Also as mentioned, counsel for the
individual plaintiffs, Mr. Sumandeep Singh, took no active role on the
hearing of the application. He adopted the position taken and the arguments
brought on behalf of Seattle by Mr. Pyper. In practical terms, therefore,
the application was argued by Mr. Pyper.

[40]      These
circumstances are highly troubling. It appears to me that what may be involved
here potentially is a breach of the
Legal Profession Act
, S.B.C. 1998,
c. 9. However, that issue is not before me. I do not have complete
information, and as a result it would be inappropriate for me to make any
conclusions or any findings with respect to that matter.

[41]      However,
I direct that the court staff deliver a copy of these reasons for judgment to
the Law Society of British Columbia, to be dealt with in such manner as the Law
Society may deem fit.

[42]      I
wish to express the point as well, that although Mr. Pyper was not denied
audience, because no issue was made of it, that does not mean that on a future
application or other proceeding a right of audience will be allowed. That is to
be dealt with on another day.

[13]

Mr. Justice
Verhoeven found that the allegations made in the application were scandalous
and unfounded.  He awarded special costs against the plaintiffs, although not
against Mr. Pyper personally, saying:

[44]      The
order as to costs I make is that the plaintiffs, all of whom were applicants,
are jointly and severally liable for special costs of the application. The
reasons for the order for special costs are the comments that I made earlier
about the lack of
bona fides
with respect to the application itself, and
the scandalous and unfounded accusations that were made during the course of
the hearing and in the materials presented to the court, including the Notice
of Application and the affidavit of Mike Singh.

[14]

In the present case,
Mr. Pyper proposes to speak to the joint factum filed on behalf of all of
the respondents by counsel for the individual respondents, Mr. Sumandeep
Singh.  Mr. Sumandeep Singh has acted for the respondents in the appeal
and signed the joint factum filed on their behalf months ago.

[15]

In
Atlantic
Chemicals Trading of North America Inc. v. Morizon Holdings Ltd.,
2005 BCCA
456 at para. 3, Mr. Justice Esson noted that the right of a
corporation to be represented by other than a member of the bar is very
limited and a matter of the discretion or indulgence by the Court.  He cited
as authoritative the decision of this Court in
Vernrose Holdings Ltd. v.
Pacific Press Ltd.
(1978), 7 B.C.L.R. 298 where McIntyre J.A. (as he
then was) speaking for the Court said this (at 304):

For reasons that are indicated in
Tritonia Ltd. v. Equity & Law Life
Assur. Society
, [1943] A.C. 584 at 586, [1943] 2 All E.R. 401, and in
Rondel
v. Worsley
, [1967] 1 Q.B. 443, [1966] 3 All E.R. 657, affirmed [1969] 1
A.C. 191, [1967] 3 All E.R. 993 (H.L.), the courts as masters of their own
proceedings must retain a discretion whether to hear from time to time in the
course of the dispatch of their business such persons other than barristers as
they may consider should be heard in the interests of justice.
The court in
its discretion may grant a privilege of audience to such persons in any case
where it deems it necessary or proper and deny it in other cases. This, no
doubt, is a power which should be exercised rarely and with caution, and it is
one the courts will be zealous to preserve
.

[Emphasis
added by Esson J.A.]

[16]

I agree with these
observations.  The factum of the respondents is before the Court.  Mr. Sumandeep
Singh signed the factum and represents the individual respondents based on the
same arguments.  Until two weeks before the hearing, he also represented
Seattle.  As Mr. Sumandeep Singh was speaking to the joint factum on
behalf of the individual respondents, it was not necessary to hear Mr. Pyper
in this case.  Mr. Pypers appointment as a director is designed to
circumvent the fact that he is not currently licenced to practice law in this
province.  There is no suggestion that there is any other reason for his
appointment.  It would not be proper to hear from Mr. Pyper.  As it was
neither necessary nor proper to hear from Mr. Pyper, the matter proceeded
based on the written factums and oral argument as presented by counsel.

B.  New Evidence

[17]

The Board applied to the Court to admit new evidence which it says goes
to the question of whether the respondents should be found in contempt.  Seattle
has responded with a cross-application addressing the matters raised by the new
evidence.  The Board made no attempt to justify the reception of the evidence
other than to say it goes to the question of the respondents knowledge of the
legislated requirements.  As this material was not before the court below, and
no attempt was made to justify its reception by the criteria articulated in
Palmer
v. The Queen,
[1980] 1 S.C.R. 759, the new evidence application was dismissed.
The respondents have also referred the Court to material in their Appeal Books
that was not before the court below.  For the reasons discussed later (paras. 113‑115)
that material is not properly before the Court.

III.
Background

[18]

In this proceeding
the Board alleged 37 breaches of the
Act
or
Regulation
by the respondents.
The judge found that the Board had proven earlier breaches of the
Act
or
Regulation
by the respondents leading to orders in the court below: 2016
BCSC 394 at para. 65.

A.  Prior Proceedings

i.
Before Russell J. (2012)

[19]

On July 31, 2012, the Board filed a petition requesting orders
restraining Mike Singh, Shawn Singh, Seattle Environmental Consulting Ltd., and
others from exposing persons to asbestos or a risk of asbestos exposure and
from breaching provisions of the
Act
and
Regulation
.

[20]

The Board alleged and
detailed numerous violations of the
Act
and
Regulation
and
numerous outstanding penalties against the respondents.  The Board relied on 17
incidents that had been through the entire quasi-judicial process (where the
respondents chose not to avail themselves of the review and appeal mechanisms
available under the statutory scheme), while noting that there were a total of
244 orders against the respondents.

[21]

The respondents
filed a
pro forma
response on August 24, 2012, noting the quantity
of material and lengthy history referenced in the petition, as well as the need
to obtain expert opinion evidence.

[22]

This matter came
on for hearing before Russell J. on September 14, 2012.  While there
are no reasons for judgment, there is a transcript of the proceedings.  Counsel
for the respondents requested an adjournment to address the volume of material.
 Counsel for the Board only consented to the adjournment if the orders
requested were made on an interim basis.

[23]

The respondents
counsel (who is not counsel on this appeal) consented to the interim order as
against each of the respondents (Mohini Singh, Skylite Building Maintenance
Ltd., Mike Singh, Shawn Singh, and Seattle) that would have effect until the
matter was brought on for a full hearing.

[24]

Madam Justice
Russell advised the respondents counsel that the order, while interim, would
be enforceable.  Counsel for the Board advised that the Board would apply for a
contempt finding if the respondents were found in violation of the order.  The
respondents counsel acknowledged both of those cautions.  He stated that the
order is in place until the next hearing  If theres one, basically.  An
order is an order. Its enforceable. Yes.

[25]

Madam Justice
Russell pronounced an interim order that prohibited and restrained Mike Singh
(a.k.a. Manoj Singh), Shawn Singh, Mohini Lata Singh, Skylite Building
Maintenance Ltd., and Seattle from exposing persons to asbestos or putting
persons at risk of exposure to asbestos and from breaching the provisions of
the
Act
and
Regulation
(the 2012 Order).  The 2012 Order was
entered on September 14, 2012.  The specific terms of the 2012 Order
relevant on this appeal stated that each of Mike Singh, Shawn Singh, and
Seattle:

is
restrained from breaching the provisions of the
Workers Compensation Act of
British Columbia,
R.S.B.C. 1996, Ch 492, and the Occupational Health
& Safety Regulation, B.C. Reg 296/97, enacted pursuant thereto.

ii.  Before Funt J. (2013)

[26]

On April 26,
2013, the Board filed an application seeking to have the respondents Mike
Singh, Shawn Singh, and Seattle found in contempt of the 2012 order.  The Board
noted a total of 51 breaches of the
Act
and
Regulation
since the
2012 Order, which it said occurred despite the Boards attempts to compel
compliance through inspection reports and Board orders.

[27]

On June 14, 2013,
the respondents filed a response opposing the relief sought.  The respondents
advanced allegations of bias (due to economic involvement and the respondents
colour and ethnic origin), libel, harassment, planting tainted samples, and Board
officers abusing their position to favour the respondents competitors.  They denied
exposing any employee to asbestos.

[28]

The respondents
sought to have the matter converted into an action, to collaterally attack
certain orders, and also sought an adjournment.  These matters were argued
before Mr. Justice Funt over two days in June 2013.  In reasons given on
September 10, 2013, indexed at 2013 BCSC 1666, Funt J. declined to
convert the proceedings to an action on the basis the four days of hearing
already scheduled were adequate for the collateral attack arguments the
respondents sought to make.

[29]

In his reasons, Funt J. concluded permitting collateral attack on the
Boards orders made after the 2012 Order but relied on as contemptuous of that Order
would not amount to impermissible collateral attack.  He concluded the
collateral attack was permissible largely because of the quasi-criminal
character of contempt proceedings and the fact the 2012 Order did not relegate
the courts fact-finding role to the Board.

[30]

When the matter
proceeded on October 11, 2013, the parties agreed the respondents Mike
Singh, Shawn Singh, and Seattle were in contempt of Russell J.s September 14,
2012 order:  (unreported decision Funt J. Oct. 11, 2013, Vancouver Registry
S125392).  Shawn Singh, Mike Singh, and Seattle were found in contempt of paras. 2, 4,
and 10 of the order, respectively.  These paragraphs restrained the
respondents from breaching the
Act
and
Regulation
.  The Boards application
for contempt findings in respect of paras. 1, 3, and 9 was dismissed
by consent.

[31]

With respect to
the findings of contempt in respect of paras. 2, 4 and 10, the
penalty imposed went by consent: Seattle and Mike Singh were jointly required
to pay $10,000 to the accident fund before February 28, 2014; and Shawn
Singh was required to pay $5,000 to the accident fund before February 28,
2014 (the 2013 Order).

B.  Proceedings Below

i.
Pleadings and Application

[32]

On September 29,
2015, the Board filed a notice of application seeking that Shawn Singh be found
in contempt of the 2012 Order.

[33]

On November 4,
2015, faced with a contempt application filed by the Board relating to alleged
breaches since the 2013 Order, Mr. Justice Dley granted an adjournment to
permit the Singhs new counsel to familiarize himself with the case: 2015 BCSC
2118.  He also granted the parties the right to cross-examine one anothers
affiants.  He declined to issue an interim injunction suspending the Singhs
business operations.  His order was made November 4, 2015 and entered
December 24, 2015.

[34]

On November 23,
2015, the Board filed notices of application seeking that Mike Singh, Seattle,
and Shawn Singh be found in contempt of the 2012 Order.

[35]

One notice of
application sought findings of contempt against Mike Singh and Seattle.  Mike
Singh was, at all relevant times, the sole officer and sole directing mind of
Seattle.  The Board detailed 24 instances at seven different work locations of
non‑compliance with the
Act
and
Regulation
since the 2013
Order, which constituted violations of the 2012 Order.  Particulars of the
alleged violations at each work location were provided, including the dates and
the statutory provision(s) violated.  The Board relied on seven affidavits in
addition to all material previously filed and served in the proceeding.

[36]

The other notice
of application sought a finding of contempt against Shawn Singh.  The notice
was similar to that filed on September 29, 2015, before the adjournment
granted by Dley J. on November 4, 2015.  The Board detailed 12 violations
of the
Act
and
Regulation
by Shawn Singh since the 2013 Order,
which constituted violations of the 2012 Order.  Particulars of the alleged
violations were provided, including the address of the work location, the
dates, and the statutory provision(s) violated.  The Board relied on nine
affidavits in addition to all material previously filed and served in the
proceeding.

ii.  Response

[37]

The respondents
filed a response on December 4, 2015 opposing the granting of contempt
orders.  They denied having breached any provisions of the
Act
or
Regulation
,
in particular denying having exposed anybody to asbestos or put anybody at risk
of asbestos exposure.

[38]

Much of the
response material was devoted to advancing allegations of bias, discrimination,
misfeasance in public office, defamation, and intentional interference with
contractual relations against the Board and its officers.  The respondents
relied on this alleged misconduct as a defence, citing
ex turpi causa non
oritur actio
and the clean hands doctrine.

iii.  Cross-application and Response

[39]

On February 3,
2016, the respondents filed an application seeking to set aside the 2012 Order.
 Their notice of application emphasized alleged misconduct and
misrepresentations by Board officers and the Boards counsel.  These
allegations largely mirrored those advanced in their response to the Boards
November 2015 contempt application.  On the basis of their allegations of
perjury and misleading the court, they said the court should refuse to hear the
Board.  The respondents also sought special costs on the basis the Boards conduct
was reprehensible.

[40]

The Board filed a
response on February 5, 2016, opposing the respondents application to set
aside the 2012 Order.  It noted the respondents cross-examined eight affiants
in January 2016, pursuant to Dley J.s November 2015 order permitting
cross-examination.  The Board emphasized the respondents application was
deficient in that it failed to provide any evidence for challenging the
granting of the 2012 Order, and instead focused on allegations of Board
misconduct subsequent to the 2012 Order.

[41]

The Board argued
that the test for the statutory injunction under s. 198 of the
Act
,
as granted in the 2012 Order, was clearly satisfied.  Furthermore, the Board
alleges the respondents have committed further breaches of the Order, which
while not yet proven, are supported by evidence given a positive preliminary
characterization by Dley J., 2015 BCSC 2118.  The Board says that although
the alleged violations are breaches of the
Act
and
Regulation
rather than exposing persons to asbestos, the defiance of the 2012 Order is no
less contemptuous.

iv.  Evidence

[42]

The evidence before Macintosh J. was extensive.  The Boards
affidavits totalled over 900 pages.  These affidavits were sworn by Board
officers and detailed various professional interface interactions with Mike
Singh, Shawn Singh, and Seattle.  The format generally identified: (1) the
location of the property at issue; (2) the nature of the work deficiencies
and violations of the
Act
or
Regulation
uncovered; and (3) the
process by which those violations were discovered, inspected, and confirmed.  Each
affiant attached the material documents as exhibits (for instance a pertinent
WorkSafe bulletin or guideline, a hazardous material survey, an inspection
report, a notice of compliance, and follow-up inspection report).

[43]

For the respondents,
only Shawn Singh provided an affidavit that, including exhibits, was over 800
pages.  In addition to various court filings and documents, Shawn Singh
included inspection reports, review documents, reports from various job sites,
compliance letters, photographs of various properties and safety equipment, and
WorkSafe guidelines.

[44]

For illustrative
purposes, I will detail one example of the evidence available to the judge on
the contempt application.  In the application relating to Shawn Singh, one of
the enumerated locations where Mr. Singh allegedly breached the 2012 Order
was a property at 6449 130th Street, Surrey, B.C.  The Boards pleading
particularized the alleged violations as follows:

a) Between
March 9, 2015 and April 19, 2015, in conducting an inspection of and
identifying hazardous materials at that location, the respondent SHAWN SINGH
did not collect representative samples of material that may be hazardous
material, did not identify each representative sample, and/or did not make a
written report of the inspection that included the location and identity of
each hazardous sample, and in so doing breached section 20.112(3) of the
Regulation, when the Respondent SHAWN SINGH took ten samples identified as
coming from ten rooms of the building without identifying the materials as
homogenous or taking a sufficient number of samples from each non-homogenous
material; and

b)
Between March 9, 2015 and May 28, 2015, in conducting an inspecting
of and identifying hazardous material at that location, the Respondent SHAWN
SINGH did not collect representative samples of material that may be hazardous
material and did not determine whether it was a hazardous material, and in so
doing breached section 20.112(3) of the Regulation, when the Respondent SHAWN
SINGH failed to collect samples or and identify as hazardous several materials
with the building, including drywall joint compound, textured wall material,
and textured ceiling material.

[45]

In support of this
pleading, the Board provided the 1st Affidavit of Kimiko Banati, made June 11,
2015.  Ms. Banati details her attendance and observations at the 6449 130th
Street property where a building was being demolished in April 2015.  A summary
of her affidavit evidence and the relevant exhibits is as follows:

·

She observed workers removing drywall
who were not wearing respirators, coveralls, or other personal protective equipment;
she did not observe any decontamination facility.

·

She attaches a copy of the Hazardous
Material Survey for the property provided to her in April 2015, which was
authored by Shawn Singh on behalf of ESS Environmental Ltd.

·

She was told all asbestos-containing
materials had been removed already.

·

She notes and attaches a copy of a
WorkSafe Bulletin noting locations where asbestos-containing materials can be
found in older homes.  She also specifies the relevant section of the
Regulation
,
and the applicable Guideline published by the Board.

·

She notes the deficiencies between the
Survey and the Guideline requirements.  After noting these deficiencies, she
ordered ESS Environmental to ensure the Survey is complete as required by the
Regulation
.
 Her inspection report and order are attached as exhibits.

·

The same day as her report and order,
she received a revised survey from ESS, also authored by Shawn Singh, dated ten
days prior (the second survey).  That second survey is also attached.  She
found the second survey contained inconsistencies and relied on information
that could only have been available
after
removal of potentially
asbestos-containing materials.  She requested confirmation of the renovation
dates relied on by Shawn Singh.  She did not receive that information from him.

·

Out of concern about the potential
ongoing presence of asbestos, Ms. Banati commissioned a third-party
consultant to conduct sampling and determine the presence of asbestos in
certain materials.  She did not provide them with specific instructions on
sampling, nor did she provide them with Mr. Singhs surveys.  She received
the report in May 2015, and it is attached as an exhibit to her affidavit.  The
report identified asbestos as present in two materials in various locations,
all not identified in either of Mr. Singhs surveys.

·

At Shawn Singhs request, a meeting
with WorkSafeBC was held where he disputed the third-party consultants
findings.  A copy of the meeting report is attached as an exhibit.

·

A new third-party
consultant was engaged to conduct a full hazardous materials survey on the
property, with two sets of samples taken and sent to two separate labs.  ESS
Environmental was onsite during the sample collection and also took its own
samples.  ESS produced a third survey.  The third-party consultant provided a
survey.  A lab report from the second lab was also provided in respect of the
second set of samples.  Copies of each of the three surveys/reports are
attached as exhibits.  They are substantially in accordance with one another.  The
third ESS survey identified asbestos-containing materials not identified in the
first and second ESS surveys.

[46]

The respondents
response does not explicitly respond to the specific Board pleadings.  As already
noted, the response largely contains broad allegations of discrimination and
abuse by the Board.  The respondents do deny that they have breach[ed] any
provision of the Regulations, in particular they deny that they exposed anybody
to asbestos or that they put anybody to the risk of exposure to asbestos.

[47]

Although the
response does not directly address the allegations in respect of the 6449 130th
Street property, Shawn Singhs affidavit sworn December 2, 2015 directly
responds to Ms. Banatis affidavit and the Boards pleading in respect of that
property.  His evidence is as follows:

·

He says his first survey complied with
the
Regulation
and guidelines.  He says after that report, an abatement
company did abatement work and caused a complete mess when conducting
demolition, which exposed asbestos-containing materials that were not visible
during his original inspection.  He attaches photos of the situation after the
abatement work.  He notes inspectors are not required to conduct destructive
sampling.

·

He says he informed Ms. Banati
that renovations in recent years may have covered asbestos-containing
materials.  He complied with her request to amplify his report.  He says he
conducted new sampling and issued a new survey that contained a Warning
noting the importance of having a qualified abatement contractor supervise and
carry out all work, and the need to stop work immediately and seek advice if
any suspicious materials [are] found on site after this report.

·

He says he took an adequate number of
samples pursuant to the guidelines and square footage of the home and properly
recorded the results from the lab.  He says the guidelines are not specific as
to the requisite number of samples for particular areas, beyond a number of
samples per square footage.

·

Shawn Singh disputes Ms. Banatis
claim he failed to provide her with information about the renovations to the
property.

·

With respect to the WorkSafeBC meeting
convened in May 2015, he says he identified discrepancies in the third-party
consultants report, which deficiencies were acknowledged by a WorkSafeBC
prevention manager.  He attaches various documents he says demonstrate the
double standards and discrimination applied by WorkSafeBC as between the
third-party consultant and ESS Environmental.

·

Shawn Singh sought
a review of the order and penalty levied against ESS, and attaches a copy of
his review application.

[48]

Ms. Banatis
affidavit is representative of the affidavits and exhibits provided by other Board
officers.  The referenced portion of Shawn Singhs affidavit is representative
of the whole affidavit.  However, the respondents did not otherwise provide
affidavit evidence to support their position.  In particular, Mike Singh and
Seattle did not provide evidence to refute the Boards pleadings and evidence
with respect to allegations made against them.

C.  Decision of the Chambers Judge (Macintosh J.)

[49]

After a hearing
held over five days in February 2016, Mr. Justice Macintosh dismissed both
the Boards and the respondents applications on February 26, 2016.  He
declined to order costs on either application.  His order was entered April 8,
2016.

[50]

Mr. Justice
Macintosh outlined the history of the matter, in particular the 2012 and 2013
Orders and the evidence presented by the Board in respect of the 2012 Order.
Noting that the 2013 Order, which found the respondents in contempt of the 2012
Order, went by consent, he concluded it was appropriate for him to consider
whether the relevant paragraphs of the 2012 Order were capable of supporting a
contempt finding: 2016 BCSC 394 at para. 13.

[51]

The judge said
that the Board brought substantial evidence of the Respondents breaching the Act
or the Regulation, or both, since the 2013 Order: at para. 16.  Although
noting the Board advanced 13 complaints against Shawn Singh and 24 complaints
against Mike Singh and Seattle, he only found it necessary to provide an
overview of the general character of the evidence provided on each count and
then go through a few examples.  In summarizing the general character of the
evidence, he said:

[18]      For
each of the 37 counts, the Board started its presentation by naming the address
of the house where it said the non-compliant surveying or abatement took
place.  For some addresses, there were two counts or more.  For each count,
first the complaint was summarized; second, the applicable section of the
Act
or the Regulation was set out; and third, the offending conduct was
particularized.  Mike Singh and Seattle presented no evidence to defend against
their counts.  However, Shawn Singh did present response evidence for his
counts.  Also, the Boards witnesses for the Shawn Singh counts were
cross-examined.  In addition to the three steps named above in the Boards
presentation for each count against Mike Singh and Seattle, the Board therefore
added steps four and five against Shawn Singh, being its summary of the
cross-examination of the Board witness and a summary of Shawn Singh's testimony
for each count.

[52]

The judge then
detailed the evidence on the first three complaints against each of Shawn Singh,
Mike Singh, and Seattle: at paras. 20‑32.

[53]

He framed the
central question as whether the relevant paragraphs of the 2012 Order were
sufficiently clear, and not overly broad, so as to be enforceable by a finding
of contempt.  In his assessment the other contempt prerequisites (actual
knowledge, intentional act or omission) were not in issue: at paras. 34,
37‑38.

[54]

With respect to
what he deemed the heart of the case, namely whether the order state[d]
clearly and unequivocally what can or cannot be done, he concluded it did not:
at paras. 37‑38, 49, 58.  His conclusion the 2012 Order was
unclear was based on four perceived flaws, each of which he considered a sufficient,
stand-alone reason for refusing to base a contempt finding on the 2012 Order.

[55]

First, there was a
temporal flaw, in that the order required the respondents not to breach the
Act and not to breach the Regulation, but did not refer to the
Act
or
Regulation
as at a particular date: at paras. 39‑40.  As a result, and in
particular because the
Act
and
Regulation
are frequently amended,
the 2012 Order was capable of two possible interpretations: either it required
compliance with the
Act
and
Regulation
as they stood at the date
of the Order, or it required compliance with the
Act
and
Regulation
as amended from time to time: at para. 40.

[56]

Second, there was
a flaw related to the scope of the
Act
and
Regulation
.  In short,
they were too large and complex.  The judge noted the
Act
contained, at
that time, 260 sections and five schedules, organized into four parts, which in
turn are subdivided into divisions: at para. 41.  The
Regulation
was equally or more daunting to the untrained eye: at para. 42.  In
addition to the text of the
Regulation
, there are associated guidelines
and Policies, as well as WCB Standards, each of which are voluminous and
complex: at paras. 43‑44.  On the basis of this breadth and
complexity, he concluded the 2012 Order did not satisfy the clear and
unequivocal requirement for a contempt finding: at para. 49.

[57]

Third, and related
to the second flaw, there was a flaw relating to the need to cross-reference
the 2012 Order with other materials to determine the nature of the obligation.  The
respondents had not appealed the 2012 Order, and thus the question was not one
of validity, but rather whether the order could support a contempt finding: at para. 50.
 The judge noted that in
Gurtins v. Goyert,
2008 BCCA 196, the contempt
finding in that case was set aside because the respondent could only ascertain
their precise obligation by cross-referencing material with the order: at para. 51.
 Applying that reasoning, he concluded the respondents would have to
cross-reference the
Act
and
Regulation
with the 2012 Order to
determine whether their conduct was contemptuous: at para. 52.

[58]

Fourth, the 2012
Order was flawed because it lacked clarity.  As Macintosh J. put it,
[e]ven if every word of the Act and Regulation was contained in the body of
the 2012 Order, it would still be impossible, in my view, for the Respondents
to know, when they went to work each day, whether their work put them offside
the Act, or the Regulation, and therefore in contempt of this Court: at para. 53.
 The judges basic concern was that many provisions were generally worded,
such that there is room for debate as to whether particular conduct complies or
does not, such as when the regulations require methods acceptable to the
Board, where acceptable methods are either not defined or the definition
requires further cross-referencing: at para. 53.  Comparing the 2012 Order
to that which founded a contempt order overturned in
Culligan Canada Ltd. v.
Fettes,
2010 SKCA 151, he concluded the order in
Culligan
was not
any less clear or less focussed  than is the 2012 Order: at paras. 54‑55.

[59]

As for the
respondents application to set aside the 2012 Order, Macintosh J.
dismissed it summarily.  His reasons bear repeating:

[59]      The
Respondents sought to avoid the risk of findings being made against them for
contempt by applying to set aside the 2012 Order upon which the contempt
applications were based.

[60]      As I
noted earlier, the Respondents did not appeal the 2012 Order, and the Court
relied upon it when making the 2013 Order.

[61]      The
Respondents challenge the 2012 Order based on three assertions.  First, they
allege that the Board published false allegations about them in the media.
Second, they alleged that the Boards counsel behaved deceitfully and
maliciously against them in the 2013 application.  They abandoned that very
serious allegation toward the end of the five-day hearing before me.  Third,
they allege that Board staff have now perjured themselves and tampered with the
evidence against the Respondents, and discriminated against the Respondents on
racial grounds.

[62]      Those
allegations suffer from two deficiencies.  First, it is unlikely they would
constitute a basis for setting aside the 2012 Order, even if they could be
proved.  Second, there is no evidence to support any of those allegations.  For
the first and third allegations, which the Respondents did not abandon, the
Respondents pointed to no evidence of any substance.  In one newspaper account
of an earlier stage in these proceedings, there was one error which the
newspaper corrected.  There is no other evidence for the first allegation.  For
the third allegation, I was directed to no evidence whatever apart from
uncorroborated generalizations by one Respondent.

[63]      The
Respondents' application to set aside the 2012 Order is dismissed.

[60]

With respect to
costs, Macintosh J. noted that the contempt application occupied the bulk
of the five-day hearing, whereas the respondents application took up a small
part of the hearing.  He determined that while the respondents would usually be
entitled to their costs for the contempt application, the scandalous and
baseless allegations made in the respondents application would warrant a
special costs order against them that would off-set the ordinary costs award
for the other part of the hearing: at para. 69.  He therefore declined to
make any costs order.

[61]

The judge referred to the Board having declined his invitation to amend
its application to request closure of the respondents businesses pursuant to
s. 198(1)(e) of the
Act
: at para. 66.  Section 198(1)(e) came
into force on May 14, 2015:
Workers Compensation Amendment Act,
S.B.C.
2015, c. 22, ss. 14, 16.  The question of whether s. 198(1)(e)
could apply was not fully argued before us.

D.  Issues on Appeal

[62]

The following
issues are raised in the main appeal:

(1)      Did
the chambers judge err in finding that Russell J.s 2012 Order was not
sufficiently clear to be enforceable by a finding of contempt?  Specifically,
did the chambers judge err by basing his conclusion on:

(a)  the
order failing to specify whether the person bound is to comply with the
Act
and
Regulation
as they existed at the time of the order, or as amended
from time to time;

(b)  the
Act
and
Regulation
being so large as to be inherently too complex to be
clear enough to found a contempt finding;

(c)  the
order requiring the person bound to cross-reference the
Act
and
Regulation
to determine the prohibited acts and omissions; and

(d)  particular
sections of the
Act
and
Regulation
being too vague to found a
contempt finding.

(2)      Did
the chambers judge make a palpable and overriding error of fact in finding the
respondents could not reasonably know what was expected of them in terms of
compliance with the
Act
and
Regulation
?

[63]

On the
cross-appeal, the respondents raise the following issues, though at the hearing
they relied primarily on their factum:

(1)      Did
Russell J.s 2012 Order expire upon the hearing of the 2013 contempt
application by Funt J.?

(2)      Did the
chambers judge make a palpable and overriding error by failing to set aside
Russell J.s 2012 Order?

(3)      Should
the respondents be awarded special costs in respect of the hearings before
Russell J. (2012), Dley J. (2015), and Macintosh J. (2016)?

IV.
Workers
Compensation Act

A
.  The
Act

[64]

The
Act
is remedial legislation.  The present proceedings concern
Part 3 of the
Act
, Occupational Health and Safety.  The purpose
of Part 3 is broadly defined in s. 107(1) of the
Act
as to
benefit all citizens of British Columbia by promoting occupational health and
safety and protecting workers and other persons present at workplaces from work
related risks to their health and safety.

[65]

Part 3 applies
broadly to every employer and worker whose occupational health and safety are
ordinarily within the jurisdiction of the Provincial government (s. 108(1)(b)).
The Board has the broad mandate to be concerned with occupational health and
safety generally, and with the maintenance of reasonable standards for the
protection of the health and safety of workers in British Columbia and the
occupational environment in which they work (s. 111(1)).

[66]

In carrying out
its mandate, the Board has authority to establish standards and requirements
for the protection of the health and safety of workers and occupational
environment in which they work (s. 111(2)(a)).  It is given broad
authority to make comprehensive regulations for the purpose of protecting the
health or safety of workers, make regulations in relation to hazardous
substances and other substances that are potentially harmful to workers (s. 158).

[67]

The
Act
places obligations on workplace owners, employers, workers and supervisors.
Every employer is required to comply with Part 3 of the
Act
, the
regulations and any applicable orders (s. 115(1)(b)).  The same obligation
applies to every worker (s. 116(1)(b)), supervisor (s. 117(1)(c)),
and owner of a workplace (s. 119(c)).  Every director and every officer of
a corporation must ensure that the corporation complies with this Part, the
regulations and any applicable orders (s. 121).  It is evident, then,
that the
Act
broadly requires compliance with the
Act
and
Regulation
through the workplace chain of command.

[68]

Division 11 of Part 3 of the
Act
authorizes an officer
of the Board to enter a place to investigate complaints or determine whether
there has been compliance with the
Act
or
Regulation
(s. 179(1)(d)).
There are evidence-gathering procedures authorized with various procedural
safeguards (ss. 180‑186).  The Board can enter into agreements with
an employer in certain limited circumstances (s. 186.1).  The Board can
also make orders, require compliance reports, and impose administrative
penalties (ss. 187‑196.1).  Finally, the Board may apply for
injunctive relief from the Supreme Court (s. 198).

B.  Occupational Health & Safety Regulation

[69]

Part 6 of the
Occupational Health & Safety Regulation
applies to workplace
exposure to potentially hazardous substances.  Much of Part 6 is devoted
to protecting against workplace exposure to potentially hazardous levels of
asbestos fibre.  The asbestos provisions in Part 6 have a comprehensive,
taxonomical structure.

[70]

The asbestos
protection provisions are engaged whenever a worker in a workplace is or may
be exposed to potentially harmful levels of asbestos fibre, including a
workplace where asbestos-containing material is present (s. 6.2).  In
that case, the employer must develop and implement an exposure control plan
that meets the requirements set out in s. 5.54 of the
Regulation
(s. 6.3(1)).

[71]

The employer must
have a qualified person collect representative samples and determine whether
each sample is an asbestos-containing material in accordance with the method
set out in s. 6.1 (s. 6.4(1)).  Section 6.1 defines a qualified
person as a person who has both knowledge of and experience in managing and
controlling asbestos hazards.  The employer must have that qualified person
prepare an inventory of all asbestos-containing materials at the workplace, and
must keep the inventory current and available at the workplace (s. 6.4(3)(c)).
 The employer is also responsible for ensuring all asbestos-containing
materials are identified at the workplace (s. 6.5).

[72]

Once the inventory
is prepared, the employer must have a qualified person perform a risk
assessment on all materials identified in the inventory before any work that
may disturb asbestos-containing material begins (ss. 6.6(1)‑(2)).  Before
any work activity that involves working with or in proximity to
asbestos-containing material begins, the employer must have a qualified person
classify the work activity as low, moderate, or high risk (s. 6.6(3)).  An
employer must,
inter alia
, ensure that friable asbestos-containing
material in the workplace is controlled by removal, enclosure or encapsulation
so as to prevent the release of airborne asbestos fibre, and must not allow any
work that would disturb friable asbestos-containing material unless necessary
precautions have been taken to protect workers (s. 6.7).

[73]

All procedures
relating to the control, handling, or use of asbestos and asbestos-containing
material must be in accordance with procedures acceptable to the Board and
must prevent or minimize the release of airborne asbestos fibres (ss. 6.8(1)‑(2)).
 Procedures must include task-specific work direction identifying hazards and
controls, and must address containment of operations, controlling release of
asbestos fibres, personal protective equipment and clothing, worker
decontamination, and removal and cleanup of asbestos waste (ss. 6.8(3)‑(4)).
 Moreover, workers at risk of exposure must be adequately instructed and
trained in the hazards, means of identifying asbestos-containing materials,
work procedures, use of personal protective equipment, operation of engineering
controls, and both the purpose and significance of health monitoring (s. 6.11).
 Personal protective equipment requirements and specifications are an
employers responsibility, and are detailed in the
Regulation
(ss. 6.29‑6.31).

[74]

Depending on the
risk level identified during the assessment phase, employers must conduct
sampling operations to check airborne asbestos fibre levels (s. 6.12);
identify, mark, secure, and restrict access to the designated work area (s. 6.13);
and may have to provide a containment and decontamination facility (s. 6.16).
 The design requirements for containment and decontamination facilities are
specified (ss. 6.17‑6.19).

[75]

Additional methods of controlling exposure to asbestos, including
protecting work surfaces (s. 6.20), wetting asbestos-containing material
(s. 6.22), and preventing the creation and spread of asbestos dust and
debris (ss. 6.21, 6.24) are all specified in the
Regulation
.  Waste
storage, clean-up, and removal procedures are also specified (ss. 6.25‑6.28).

[76]

In sum, the
Act
gives the Board a broad mandate, and the
Regulation
sets out detailed
requirements for various actors in the workplace to ensure proper handling of
asbestos.

V.
Discussion
and Analysis

[77]

Based on the
record before the Court, it is clear that over the course of years of
interactions between the Board and the respondents, there were many Board
orders outlining breaches of the
Act
and
Regulations
, with
particulars provided regarding those breaches.  In many cases where these orders
were made, the respondents were required to, and did submit, a notice of
compliance in which they indicated how they proposed to comply with the
Act
and
Regulation
in the future.

[78]

Eventually the
Board sought an order under s. 198 of the
Act
in the face of
multiple ongoing breaches of the
Act
and
Regulation
(the material
before the Court indicates that over 200 orders have been made against the
respondents).  At the relevant time, s. 198(1) in its relevant respects
read as follows:

198 (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 not
complied or is likely not to comply with this Part, the regulations or an order
,

the Supreme Court may grant an injunction
restraining the person from
continuing or committing the contravention or
requiring the person to comply
,
as applicable.

[Emphasis
added.]

[79]

At issue is the
following term of the 2012 Order of Russell J, which stated each of Mike
Singh, Shawn Singh, and Seattle:

is
restrained from breaching the provisions of the
Workers Compensation Act of
British Columbia,
R.S.B.C. 1996, Ch 492, and the Occupational Health
& Safety Regulation, B.C. Reg 296/97, enacted pursuant thereto.

[80]

The judge based
his finding that the order of Russell J. was not sufficiently clear to be
enforceable by a finding of contempt based on four factors which I will deal
with
seriatum
.

A.  Temporal Ambit of the 2012 Order

[81]

The judge found
that the 2012 Order did not refer to the
Act
or
Regulation
as of
a particular date, and therefore the Order is capable of two interpretations:
either it requires compliance with the
Act
and
Regulation
as it
existed at the time the order was made, or alternatively, compliance with the
Act
as amended from time to time.

[82]

I am not persuaded
that the 2012 Order is ambiguous in this respect.  First, the only reasonable
interpretation of the Order is that it requires compliance with the
Act
and
Regulation
as amended from time to time.  It would make no sense to
require compliance with statutory or regulatory requirements that had been
replaced or superseded, but that is what a point-in-time interpretation would
require.

[83]

Second, the
statutory obligation on employers, workers, supervisors and the directors and
officers of corporations (earlier described) surely must be to comply with the
Act
and
Regulation
s
as they exist from time to time
.  This makes
sense because the
Act
and
Regulation
s governing health and safety
are contextual, reflecting changes in knowledge and technology, and reflecting
the ongoing obligations of persons who elect to operate for profit in this
industry to keep informed and abreast of workplace requirements.  Orders under
s. 198 surely parallel those obligations as a means of ensuring compliance.

[84]

In any event, were
it necessary to do so, I would read into the Order the requirement to comply
with the
Act
and
Regulations

as amended
.  Doing so does
not entail the Order being unclear or unable to found an order for contempt.  Instead,
it only reflects what is clearly the only reasonable understanding of the
Order.  In
Sound Contracting Ltd. v. Regional District of Comox-Strathcona
,
2005 BCCA 167, Mr. Justice Smith, speaking for the Court, upheld a finding
of contempt, holding that an order requiring the production of documents should
be interpreted as requiring compliance
within a reasonable period of time
,
rejecting the position that the failure to specify a precise time for production
created impermissible ambiguity.  Similarly, in my view, it is clear that the
requirement was to comply with the
Act
and
Regulation
as amended,
and the failure to expressly specify that does not create impermissible ambiguity.

B.  Inherently Complex

[85]

The judge found
that the
Act
is voluminous and complex, particularly for people who are
not lawyers.  Indeed, the
Act
and
Regulation
contain many
sections and schedules, some of which I have outlined above.  This prolixity
seems to have founded the conclusion that the 2012 Order does not satisfy the
requirement for a clear and unequivocal statement of what the respondents need
to do or must not do in order to avoid being found in contempt.

[86]

While the
Act
and
Regulation
may have some complexity, the persons to whom they apply voluntarily
engage in a business for profit in a highly regulated area, and do so on the understanding
that they must comply with the
Act
and
Regulation
.  The
Act
and
Regulation
are concerned with workplace safety.  Requiring
familiarity and understanding of statutory and regulatory requirements for
workplace safety from voluntary industry participants is not an impermissibly onerous
requirement.  This is especially so, given the nature of the business in this
case.

[87]

As the appellant
points out, the respondents are not expected or required to be aware of every
section of the
Act
and
Regulation
.  They are expected and
required to be aware of those provisions of the
Act
and
Regulation
that apply to the industry in which they voluntarily participate.  Those
include some of Part 3 of the
Act
and some of Parts 5, 6
and 20 of the
Regulation
.

[88]

Moreover, in this
case, I do not understand the respondents to ever have contended that they did
not know and understand the requirements of the
Act
and
Regulation
.
 Their response materials do not so allege.  With respect to most of the
breaches alleged, the respondents took no issue with the Boards factual
assertions, but rather took the position, as noted by the judge, that the best
defence was a good offence arguing,
inter alia
, discrimination and
racism (para. 64), suing the Board, its counsel, and bringing a human
rights complaint.  The evidentiary matters underlying those assertions are
repeated in the written arguments before us.

[89]

There are two
cases referred to as supporting the proposition that the 2012 Order does not
satisfy the requirement for a clear and unequivocal statement of what the
respondents need to do or must not do in order to avoid being found in
contempt:
Culligan Canada Ltd. v. Fettes
; and
Tiger Tool
International Incorporated v. Cool‑It Hi‑Way Services Inc.
,
2015 BCSC 1606.

[90]

In
Culligan
,
the issue before the Court was whether an injunction was clear or ambiguous
prohibiting former employees from broadly described activities in relation to
customers of their former employer.  There was a significant judicial history
where successive judges had attempted to clarify the order which prevented the
former employees from serving customers of their former employer, yet was not
intended to restrain competition.  The Court referred to this problematic
language as follows:

30
In my respectful view, the
inconsistency between the reasons of Ball J. and the Corrigendum, and the
lack of clarity in the Corrigendum, make the certain and consistent application
of the Order to these facts problematic. The reasons contemplate some
legitimate competition on the part of Novo and the named employees (apart from Mr. Fettes).
The Corrigendum defines serve as being useful to, which appears to collide
with allowing legitimate competition, but then speaks of prohibiting only initiatives,
which appears to permit contact between Novo and customers as long as the
customers were not solicited by Novo, and to narrow the scope of the Order. This
Courts capacity to apply the Order to these facts, therefore, is undermined by
the Orders failure to clarify the content of the prohibition against serving.
The definition of serve in its broadest sense would mean that any contact
between Novo and WaterGroup customers would be enjoined, but if the term serve
only enjoins contact initiated by Novo, none of the impugned activities in the
first contempt application could support a finding of contempt.

[91]

The issue in
Culligan
thus

turned on an ambiguity in the
order that rendered it unclear.

[92]

In my view, the
same observations apply to the decision in
Tiger Tools
.  There, the
party seeking an order of contempt argued that the terms of an injunction
required compliance with an agreement.  There was substantial disagreement
between the parties as to what the agreement required, so it was unclear what
was to be done or not done.  The Court concluded (at para. 41) that
[w]hat Tiger Tool is really seeking to do on this application is to resolve
highly-contentious issues through a summary process on [a]  contempt
application.  The highly-contentious issue referred to was precisely what was
required by the commercial agreement.

[93]

In this case, the 2012
Order required compliance with the
Act
and
Regulation
.  I do not
see there is any ambiguity in the Order as was the case in
Culligan
and
Tiger
Tools
.  The 2012 Order plainly required compliance with the
Act
and
Regulation
in a highly-regulated workplace environment.  It did so in the context of over 200
Board orders over several years.

C.  Cross-Referencing

[94]

The judge found
that the respondents could not know their obligations by what was said in the 2012
Order, but had to cross-reference other material (the
Act
and
Regulation
)
in order to ascertain their precise obligations.  The appellant says there are
no authorities that find it is improper to enforce an order that requires
compliance with a statute or regulation.

[95]

The judge referred to the decision of this Court in
Gurtins v. Goyert
,
2008 BCCA 196.  In
Gurtins
,

the issue in a family proceeding was
whether one of the parties was in contempt when they did not return a child
from Victoria to Kitimat.  There was nothing on the face of the order that
enjoined that although by reviewing the order, reasons for judgment and
transcripts of proceedings such an intention could be inferred.  The
cross-referencing issue was that it was impossible to determine the precise
obligation without reading into the injunction implied terms garnered by
reference to extraneous material.  That is not the case here.

[96]

Of course, the
criminal law requires compliance with its statutory provisions.  Every form of
release under the
Criminal Code
will ordinarily include a clause
requiring the person released to keep the peace and be of good behaviour.
This requires the person to obey the law with subsequent criminal charges being
treated as a breach of the term.  Breaching this term can result in a persons
imprisonment and a further conviction on the persons criminal record.  Courts
routinely enforce such terms, without finding them too vague and thus,
unenforceable, because they require cross-reference to a host of large and
complex statues, such as,
inter alia,
the
Criminal Code.

[97]

In my view, the
answer to this issue lies in the scheme of the
Act
and the statutory
language.  Subsection 198(1) provides that the Supreme Court may grant an
injunction requiring a person to comply with this Part, the regulations or
an order on an application in the specified circumstances.  One of the
specified circumstances is where a person  (b) has failed to comply
with, or is likely to fail to comply with, this Part, the regulations or an
order.

[98]

That is precisely the
order the Board sought and obtained from Russell J., in the context of a
statute that already required the respondents to comply with the statute and
regulations and where, it was alleged, the persons concerned had been found to
be in breach of numerous statutory and regulatory requirements leading up to
obtaining the order.  While the order may be broad, it was particularly
appropriate, and legislatively permitted, in the circumstances of this case.

[99]

In my view, it was
precisely situations like the one at bar, where the alleged contemnors have a
long history of breaches of the regulatory regime, that the legislature
provided this avenue for court-ordered injunctive relief to ensure regulatory
compliance.  The judges finding suggests that even though the legislature
requires statutory compliance and allows a court to order certain persons to
comply with the statute in defined circumstances, the court nonetheless cannot
enforce such orders through its contempt powers.  With respect, I cannot agree.

D.  Vagueness

[100]

The judge found
that even if all of the applicable requirements of the
Act
and
Regulation
had been set out in the 2012 Order, it would still be impossible for the respondents
to know whether their conduct was in compliance with the
Act
and
Regulation
because many sections are generally worded, leaving room for debate on whether
particular conduct complies or does not comply with the
Act
and
Regulation
.

[101]

The respondents
did not take the position in their pleadings or their evidence that they were
unaware of what was required of them or that any of the obligations were worded
in a manner too vague to be understood.  Of course, whether any particular
alleged violation of the
Act
or
Regulation
is made out on the requisite
standard is a matter of proof.  It is clearly open to a court to find that any
particular breach alleged is not made out because a statutory requirement is
unclear or ambiguous.

[102]

In my view,
the fact that some provisions of the
Act
or
Regulation
may be
attacked as unclear does not render an order to comply with the
Act
and
Regulation
incapable of enforcement by contempt.  If the breaches alleged are founded on
an uncertain statutory provision, then the breaches might not be made out and
the conduct alleged could not be found to be in breach of the court order.  The
reasoning for this is that the applicant has not demonstrated, beyond a
reasonable doubt, that a provision has been breached, since it may be
reasonable to find that the impugned act or omission was not, for example,
within the scope of the provisions prohibition.  The heavy lifting required of
the court is to review the evidence adduced and the particular statutory or
regulatory provision to ascertain if the breach is made out on the applicable
standard, and whether that breach warrants a finding of contempt.

E.  General

[103]

Contempt of court
rests on the power of the court to uphold its dignity and process.  The purpose
of a contempt order is most importantly a declaration that a party has acted in
defiance of a court order.  Civil contempt has three elements which must be
established beyond a reasonable doubt: (1) the order must state clearly
and unequivocally what should and should not be done, (2) the party
alleged to have breached the order must have knowledge of the order, and (3) the
party allegedly in breach must have intentionally done the act that the order
prohibits or intentionally failed to do the act that the order compels.  These
elements, together with the heightened standard of proof, ensure that a
contempt finding ensues only in the appropriate circumstances:
Carey v.
Laiken
, 2015 SCC 17 at paras. 30‑33.

[104]

Further, the
contempt power is discretionary and courts have generally discouraged its
routine use to obtain compliance with court orders.  It should not be used
merely as a means of enforcing judgments and should be used cautiously and with
great restraint.  Thus, where an alleged contemnor acted in good faith in
taking reasonable steps to comply with the order, the judge entertaining a
contempt motion retains some discretion to decline to make a finding of
contempt:
Carey
, paras. 36‑37.

[105]

By these
reasons I do not mean to suggest that contempt has been made out in this case.  That
issue is not properly before this Court.  The issue here is whether the judge
erred in finding that the relevant paragraphs of the 2012 Order cannot form the
basis of contempt of court because they were not sufficiently clear.  I would
conclude that the judge did so err.  It is now necessary for the court to
perform the three-element analysis with respect to the breaches alleged and the
requirements for a finding of contempt, and if those elements are established
on the heightened standard of proof, then to decide whether to exercise the
courts residual discretion to nonetheless deny the application for contempt.  The
results of that analysis are factually driven.  It will be for the court
hearing the contempt application to make those factual findings and
discretionary decisions.

[106]

I would also note
that this is somewhat of an extraordinary case.  The matter before the court
involves a lengthy and continuing history of multiple types of workplace
conduct said to be of a very serious nature.  It involves for-profit actors
with statutory duties in a highly regulated workplace.  There have been
multiple Board orders, compliance reports and administrative penalties.  In
such circumstances, an order requiring compliance with the statute and
regulations may be viewed somewhat differently than matters involving isolated
incidents or infrequent conduct.

VI.
Reply
and Cross-Appeal

[107]

In the respondents
reply and cross-appeal, they alleged a number of errors which I have collapsed
into four categories: (1) that the judge erred in failing to set aside or
properly interpret the 2012 Order, (2) that the judge showed bias against
the respondents by condoning the conduct of the appellants lawyers, (3) that
the judge exhibited bias by his conduct of the proceeding, and (4) that
the judge erred in failing to award special costs, or costs, to the respondents.

A.  The Order of Russell J.

[108]

The respondents
attack the 2012 Order in two respects:  (1) they say that it was wrongly
interpreted, and (2) that it should have been set aside.

[109]

With
respect to the interpretation issue, the respondents say that the order expired
following the conclusion of the hearing before Funt J., which was the next
hearing following the making of the order by Russell J.  I do not see how
this can be so.

[110]

The
hearing before Funt J. was not a hearing on the merits of the original
application.  It seems the respondents have misunderstood the meaning of an
interim order.  An interim order is an order that is in effect only until a
hearing of the underlying application
on the merits
, where it may be set
aside or varied by the Court.  It does not cease to be in effect just because
the parties subsequently appeared before another judge.

[111]

While the Russell J.
order was an interim order, it was not superseded by any subsequent order.  It
did not have an expiry date.  The hearing before Funt J. was on the
question of whether the respondents were in breach of the Russell J.
order.  He found that they were in breach of some of its provisions.  Although
the Russell J. order is an interim order, it was not set aside or
challenged by a subsequent hearing on the merits.  Accordingly, it remained in
force.  I can find no error in the Courts reasoning on this issue.

B.  Bias

[112]

The respondents
say that Macintosh J. showed bias against them.  They say that he
bullied respondents counsel to abandon assertions against counsel for the
Board, was not impartial in his assessment of the evidence, and had a closed
mind when it came to the question of costs.

[113]

In support of
their position, the respondents refer to the affidavit of Mike Singh, which
forms part of the Respondents Appeal Book.  The affidavit is sworn June 23,
2016.  The proceedings before Macintosh J. concluded with the entry of the
order on April 8, 2016, arising from reasons pronounced February 26,
2016.

[114]

Rules 26(1)
and 26(1)(b) of the
Court of Appeal Rules,
B.C. Reg. 297/2001,
as amended, require the contents of an Appeal Book to be in Form 12.  Form 12
provides that [t]he Appeal Books must contain only so much of the evidence,
including exhibits, affidavits and other documents, as is necessary to resolve
the issues raised on appeal.  Mike Singhs affidavit forms no part of the
evidence in the court below.

[115]

The
affidavit is apparently the opinion of Mike Singh on the conduct of the
proceedings below.  This affidavit is not properly before the court and should
not have been included in the Appeal Book.  If the respondents took issue with
the conduct of the proceedings below, they should have included in their
materials transcripts of those proceedings.  I note that they have included
transcripts from other proceedings before other justices, but those are not
relevant on this point.

[116]

I am
satisfied that the record below shows no evidence of a lack of impartiality and
it does not support the assertion that the judge had a closed mind on the
issues before him.

C.  Conduct of Counsel

[117]

The respondents take
issue with the conduct of counsel for the Board before the court below.  They
variously describe that conduct as troubling, reprehensible and outrageous,
dishonest and deceptive, and misleading.  These are strong assertions that
should not be lightly made against an officer of the court.  I have reviewed
the assertions made and the evidence said to be in support of those
allegations.

[118]

An example of
conduct that is said to support those allegations concerns representations
regarding the 2012 Order.  The respondents assert that counsel misled the court
because plain and simple [the order] does not exist anymore.  That assertion
is incorrect.  As discussed above, the respondents misunderstand the nature of
an interim order.  Although the order was an interim order, it remained in
place until varied or set aside.  Neither occurred.  Counsel did not mislead
the Court.

[119]

The respondents
take issue with some of the representations made by counsel during the course
of the hearing.  For example, they say that counsel said That the respondents
are evil and That the respondents are killing people.  In support of those
assertions they refer to two passages in transcripts of the proceedings.

[120]

With
respect to the first assertion, counsel actually speaks of the evil that we
are seeking to stop here.  The evil is exposing people to danger in the
workplace.  Counsel did not say the respondents are evil.  There is nothing
inappropriate or untoward in making such a submission in the context of this
proceeding.

[121]

Nor did counsel say, as the respondents
assert, that the respondents are killing people.  What counsel did say is the
following:

the violations are egregious.  They are not simply missed opportunities.
Theyre in some cases conscious efforts to disobey the rules and in those
circumstances have exposed people to a deadly carcinogen, asbestos, and its
being done for money.  We have evidence thats part of this material that
asbestos is a deadly carcinogen.  In the last ten years its been responsible
for all 30 percent of all deaths arising out of in the course of employment.
Last year alone it was responsible for 44 percent of all deaths arising out of
and in the course of employment.industrial disease now kills more workers than
actual injury in the course of employment.

[122]

That submission
was made in the context of an adjournment application.  The Board opposed the
adjournment because of the seriousness of the conduct it said gave rise to the
breaches.  There was nothing inappropriate or untoward in counsel making a
submission regarding the seriousness of conduct said to violate workplace
health and safety regulation.

[123]

I can see no merit
to the respondents attacks on counsels conduct in the proceedings.

D.  Costs

[124]

The respondents
say that they should have been awarded costs or special costs.  On the question
of costs, the Court found that success was divided.  The respondents
application to set aside the 2012 Order was dismissed.  The Boards application
for orders finding the respondents in contempt was dismissed.  While success
was divided, the Court was faced with the question of what order of costs to
make where one application took more court time than another application.

[125]

On the record
before him, the judge found that the respondents position involved scandalous
and baseless allegations against the Board, Board staff and Board counsel that
warranted an order for special costs.  As success was divided the judge found
that the costs were properly offset.  It is trite law that orders as to costs
are discretionary.  The judge did not err in failing to award the respondents
costs or special costs in these circumstances.

VII.
Disposition

[126]

I would allow the appeal and dismiss
the cross-appeal.  I would remit the matter to the court below to determine
whether the respondents were in contempt of the 2012 Order of Russell J.  The
appellant is entitled to its costs of this appeal.

[127]

Although the
appellant has been successful in this appeal, whether they are successful in
the petition is for determination by the court below.  I would leave the
question of the costs of the first hearing to be determined at the rehearing of
the petition.

The Honourable Mr. Justice Savage

I
agree:

The Honourable Mr. Justice Frankel

I
agree:

The
Honourable Mr. Justice Harris