Welcome to the show! Today we're diving into a case that gets to the very heart of regulatory enforcement. It asks a fundamental question: when does a strict, black and white rule become an obstacle to fairness? How do you balance the need for clear safety standards with the messy, nuanced reality of a worksite? This isn't just a philosophical debate.

It's the core issue in a landmark decision from British Columbia's Workers' Compensation Appeal Tribunal, or WCAT. We're talking about decision A2200622, a case that challenges how WorkSafeBC automatically labels certain safety violations as high risk. So let's set the scene. The story begins on 09/16/2021. A WorkSafeBC officer is conducting an inspection at a worksite and comes across an excavation.

It's a small pit about three feet by three feet square. The depth, however, is the critical point. It was measured at somewhere between forty six and fifty eight inches deep. The exact number was actually in dispute. Now, why does this matter?

Because under section 20.81 of the occupational health and safety regulation in BC, any excavation that is 48 inches deep or four feet requires shoring or some other form of protective measures to prevent a collapse. Because this excavation was potentially over that 48 inch threshold and was unsure, the officer did what they were trained to do. They issued a contravention order. But it didn't stop there. A few weeks later on 11/03/2021, the employer was hit with a significant administrative penalty, $15,911.90.

The employer understandably decided to appeal. They argued two main points. First, that the excavation might not have even been 48 inches deep. And second, even if it was, was this massive penalty really justified by the actual risk? The case worked its way through the review process and eventually landed in front of a three member panel at WCAT.

And this is where things get really interesting. The WCAT panel didn't just look at the depth of the hole. They zoomed out and examined the entire policy framework that led to that $16,000 penalty. The policy in question is item P2952 in WorkSafeBC's Prevention Manual. This policy creates a special list of six types of violations that are automatically, without exception, considered high risk.

These six violations are what the regulator considers the most serious hazards. They include: Working in an unshored excavation over four feet deep, which is our case. Working at a height over 10 feet without fall protection. Entering a confined space without proper atmospheric testing performing asbestos abatement work without the right precautions hand falling or bucking trees without following safety protocols and finally, working near combustible dust accumulations. A pretty serious list, no doubt.

Now, here's the kicker: when a violation gets that automatic high risk label, three very significant things happen immediately. First, it automatically satisfies the first step for imposing a penalty. There's no debate about whether a penalty is warranted. It's a given. Second, under a related policy, it doubles the base penalty amount.

That's a huge financial jump. And third, it can cause an employer to lose their certificate of recognition or COR rebate. This rebate can be worth up to 10% of an employer's annual WorkSafeBC assessments. For a large company, that can be a massive financial blow. So this high risk designation is not just a label.

It has severe automatic consequences. The WCAT panel, however, looked at the specific circumstances of this three by three foot trench and started asking questions. They noted several factors suggesting that this particular situation might not have actually posed a high risk. For instance, given its tiny dimensions, a worker standing or kneeling inside would have physically taken up most of the space. The panel reasoned that this could have actually made it easier for the worker to escape if a minor collapse occurred as their body would have braced the walls.

It's a counterintuitive but plausible point. Furthermore, the panel considered the timeline. The excavation was only briefly over that 48 inches threshold during the act of digging itself. The work being performed inside was short term and involved only a single worker. When you add all this up, the panel felt that the actual real world danger didn't seem to match the high risk label that the policy automatically applied.

This led them to the central legal question: Does a mandatory policy that removes all judgment improperly, quote, fetter the discretion granted by the law? Let me break that down. Fettering discretion is a legal concept that basically means tying the hands of a decision maker who is supposed to have the flexibility to consider individual circumstances. Section 95 of the Workers' Compensation Act says the board may impose administrative penalties. That word may is crucial.

It signals that the power is discretionary, not mandatory. The panel concluded that by making the high risk designation automatic with zero room for exceptions or consideration of context, the policy effectively extinguishes that statutory discretion. It forces the hand of the decision maker, turning a may into a must. The policy says if it's an unshored trench over 48 inches, it is high risk. End of story.

The panel found this to be a problem. And they weren't the first to think so. They referenced another WCAT decision from July 2021 where a different panel had raised similar concerns. In that earlier case, an employer had presented expert evidence showing that due to the specific soil conditions, there was virtually no actual risk of collapse. Yet the policy still forced the high risk designation.

This showed a pattern of concern about the policy's rigidity. So what did the panel do? Under a specific power given to them in Section three zero four of the Act, they officially referred the policy to the chair of WCAT, labeling it as patently unreasonable. This is a very strong condemnation in the legal world, but they didn't just tear it down. They offered a solution.

They suggested that the policy could be fixed with some very minor amendments. Imagine adding words like presumptively high risk or generally high risk or, my personal favorite, high risk unless exceptional circumstances are present. This simple change would preserve the policy's intent to treat these violations seriously while restoring the necessary discretion to assess unique situations on their own merits. The implications of this decision are significant for every employer and safety professional in British Columbia. It's a clear challenge to a one size fits all approach to safety enforcement.

It champions the idea that context matters. Now let's be crystal clear. This decision does not in any way minimize the importance of excavation safety or any of the other high risk categories. Those rules exist for a very good reason. But what it does argue for is a system of enforcement that maintains the flexibility to ensure that penalties are proportionate to the actual risk involved.

For safety professionals on the ground, this case underscores the critical importance of documentation. If you find yourself in an unusual situation, document the site specific conditions. Document your risk assessments. That evidence could be crucial if a rigid policy is ever applied to your unique circumstances. For WorkSafeBC, this decision is a clear signal that policy changes are likely needed.

It's a call to build discretion back into the system. The goal, after all, isn't just to penalize but to create safer workplaces. And sometimes, achieving that requires not just a rulebook but also sound judgment.