Sam Tecle
Associate
Article
4
A recent Workers’ Compensation Appeal Tribunal (WCAT) decision provides useful guidance on the due diligence defence available to employers facing occupational health and safety administrative penalties.
In A2300616 (Re), 2026 CanLII 54697 (BC WCAT), WCAT cancelled a $57,282.25 administrative penalty arising from an excavator rupturing a natural gas line. Although the employer contravened the Occupational Health and Safety Regulation, WCAT found that it had taken all reasonable steps to prevent the violation and had therefore established due diligence.
The employer, a civil construction contractor, was performing excavation work when an excavator operator ruptured an underground natural gas line. The worksite was evacuated and the utility owner attended to repair the line.
WorkSafeBC determined that the employer had contravened section 20.79(2) of the Regulation, which requires excavation and drilling work near underground utility services to comply with the utility owner’s requirements. WorkSafeBC imposed an administrative penalty of $57,282.25.
The employer appealed, arguing that it had exercised due diligence.
WCAT upheld the finding that the employer had contravened the Regulation. However, under section 95(3) of the Workers Compensation Act, an administrative penalty cannot be imposed where an employer establishes that it exercised due diligence.
WCAT cautioned against assessing due diligence with the benefit of hindsight. The fact that a violation occurred does not establish that the employer’s precautions were inadequate. Similarly, identifying an additional precaution that might have prevented the incident does not necessarily establish a lack of due diligence, as further precautions can almost always be identified after an incident.
WCAT found that the employer had taken all reasonable steps to prevent the violation. The underground gas line had been identified and marked before excavation. A daily hazard assessment and Ground Disturbance Permit had been completed and acknowledged by the excavator operator and spotter. The operator was experienced and trained, was familiar with the employer’s safe work procedures, and a superintendent was present on site.
WCAT also noted that the employer had revised its procedures and provided additional training following an earlier utility-strike incident. There was no evidence of inadequate training or supervision. Instead, WCAT found that the violation resulted from operator inattentiveness and a failure to appreciate a small but important detail.
WCAT concluded that the employer had exercised due diligence and cancelled the penalty.
The decision highlights an important distinction between a deficiency in an employer’s safety system and a worker making an error despite reasonable precautions being in place. A worker’s mistake may result in a regulatory violation without necessarily defeating the employer’s due diligence defence.
The case also underscores the importance of being able to demonstrate that safety measures were implemented in practice. Contemporaneous records such as hazard assessments, permits and training records, together with evidence of appropriate supervision, can help establish that an employer identified the relevant hazard and took reasonable steps to address it.
For employers, the practical lesson is to ensure that safety procedures are not only appropriate on paper, but consistently implemented and documented. If an incident occurs, that evidence may be critical in demonstrating that the incident resulted from an isolated worker error rather than a deficiency in the employer’s safety system.
If you require assistance with occupational health and safety matters, including WorkSafeBC inspections, orders or administrative penalties, please contact a member of our Employment, Labour & Equalities Group.
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