CIVIL LITIGATION UPDATE
Workers' Compensation Board v. Skylite Building Maintenance Ltd., 2016 BCSC 394, provides a
reminder to counsel of the importance of drafting orders with careful attention to the clarity of their
terms, so that breaches of those orders may be conclusively identified.
March 31, 2016
By Joel Morris and Ted Murray
On February 26, 2016, Macintosh J. dismissed the Workers Compensation Board’s (“WCB”)
application for contempt orders against Shawn Singh, Seattle Environmental Consulting Ltd.
(“Seattle”), and Mike Singh. The WCB alleged the respondents had breached the terms of an
injunction order made on September 14, 2012 (the “2012 Order”).
The application that led to the 2012 Order was brought pursuant to s. 198 of the Workers’
Compensation Act, R.S.B.C. 1996, c. 492 (the “Act”), which allows the WCB to, in the event of a
contravention or likely contravention of the Act, seek an injunction restraining the person from
continuing and committing the contravention and restraining the person from carrying on an
industry or an activity within the industry.
The 2012 Order made similar orders against five respondents, three of whom were accused of
contempt. Each respondent was enjoined by two paragraphs of the 2012 order; paragraphs 1 and
2 are examples:
1. Mike Singh, also known as Manoj Singh, shall not expose persons to asbestos or put
persons at risk of exposure to asbestos and is restrained from doing so;
2. Mike Singh, also known as Manoj Singh, is restrained from breaching the provisions of the
Workers Compensation Act of British Columbia, R.S.B.C. 1996, Ch 492, and the provisions of
the Occupational Health & Safety Regulation, B.C. Reg 296/97, enacted pursuant thereto;
The WCB alleged the respondents committed 37 violations of the Act or the Occupational Health
and Safety Regulation, B.C. Reg. 296/67 (the “Regulation”). Mr. Justice Macintosh reviewed the
evidence presented by the WCB in support of these “counts.” However, given his findings
regarding the 2012 Order, discussed below, his lordship did not reach any conclusion with regard
to whether violations of the Act or Regulation had been committed.
The central question was not whether violations of the Act and Regulation had been committed,
but whether the 2012 Order was sufficiently clear, and not overly broad, so as to be enforceable by
a finding of contempt.
With reference to Carey v. Laiken, 2015 SCC 17 at paras. 31-35, Macintosh J. noted (at para. 37)
the applicant for a civil contempt order must prove three elements beyond a reasonable doubt:
1. the order alleged to have been breached must state clearly and unequivocally what can or
cannot be done;
2. the respondent must have actual knowledge of the order; and
3. the respondent must have intentionally acted or failed to act when committing the breach.
(A finding of criminal contempt requires a further element, public defiance.)
The first of these elements was central to this case.
Macintosh J. noted paragraph 2 of the 2012 Order simply ordered the respondents not to breach
the Act or Regulation. (One would expect that absent such an order all persons are, at all times,
prohibited from breaching a statute and its regulations.) Matters of concern included:
1. the 2012 Order did not refer to the Act or the Regulation as of a particular date;
2. in a five-day hearing, the parties directed almost no argument toward the contents of the
Act and Regulation or its complexity;
3. the Act, and especially the Regulation, were “daunting,” “voluminous,” and “complex” – a
review of them would be “somewhat like a review of the Income Tax Act”; and
4. WCB also provided extracts of “Guidelines” that were relied upon by WCB as containing
the applicable laws.
All of these concerns weighed against a finding the 2012 Order was sufficiently clear to provide the
basis for a contempt order. This is notwithstanding a finding of contempt made in 2013, that had
itself been based on the 2012 Order. The WCB argued that because the court found contempt
based on the 2012 Order in 2013, Macintosh J. was precluded from examining the 2012 Order to
determine whether it could properly support contempt findings. His lordship rejected this argument
because in 2013 the court did not conduct such a review of the 2012 Order and, thus, there had
been no determination of that threshold question (paras. 12-13).
The purpose of the first requirement for a finding of contempt is to ensure that a party will never be
found in contempt where an order is not clear. An order may be unclear if: it misses a key detail
about where, when, or to whom it applies; it incorporates overly broad language; or external
circumstances have obscured its meaning (para. 48).
In particular, an order may be unclear if the respondents to a contempt application could not know
their obligations by a review of the order itself, but had to cross-reference other material to
ascertain their precise obligations. For persons subject to court orders to be able to meet their
obligations they must be able to refer to the face of the formal order (para. 51). Macintosh J. found
this reasoning was applicable to the 2012 Order as the respondents could only determine their
obligations by comprehensively reviewing the Act and Regulation.
However, Macintosh J. also found that even incorporating every word of the Act and Regulation
into the body of the 2012 Order would not have been sufficient, given the necessarily general
wording of hundreds of their provisions. For example, one of the provisions that was allegedly
breached required that work be conducted using “methods acceptable to the Board”; what was
acceptable to the Board was not defined in any document Macintosh J. was referred to (para. 53).
Clarity in the order is necessary to maintain fairness to the respondents and the integrity of the
court and, in turn, to preserve the rule of law (para. 57). In this case, it was a “practical
impossibility” for the respondents to know with clarity what they were to refrain from doing;
therefore, the 2012 Order could not form a basis for contempt. Where a party is to be enjoined
from breaching a statute or a regulation, the scope of the order should be limited only to those
provisions that are likely to be in issue, especially where it is a comprehensive legislative scheme.
The decision in Skylite Building Maintenance should not be taken to mean that – as some media
reports seemed to suggest – the Act and Regulation are unenforceable. However, it should serve
as a warning to counsel that in considering what relief to seek on an application and in drafting an
order they should turn their mind to the question of whether such an order will be clear enough to
later serve as the basis for a finding of contempt.
In particular, counsel should avoid any form of external cross-referencing that would require the
enjoined party to refer to material other than the order itself to determine their obligations under the
order. While this may be inconvenient and make for lengthy and awkward orders in some
circumstances, it would be prudent for counsel to keep the requirements of an order within that
order’s four corners.
THIS UPDATE PROVIDES A REVIEW OF CASE LAW AND EMERGING ISSUES IN CIVIL LITIGATION IN BRITISH COLUMBIA. THESE SUMMARIES ARE NOT LEGAL
OPINIONS. READERS SHOULD NOT ACT ON THE BASIS OF THESE SUMMARIES WITHOUT FIRST CONSULTING A LAWYER FOR ANALYSIS AND ADVICE ON A
SPECIFIC MATTER.
Through our Civil Litigation Update Ted and I provide summaries of recent cases of interest to
civil litigators in British Columbia.
We hope you find these updates useful. We welcome feedback. Please send an e-mail if you
would like more details about the cases covered, to provide general comments, or to suggest
topics or cases of interest.
Joel Morris
604.895.2887
[email protected]
Ted Murray
778.863.9430
[email protected]