Executive Summary: Key Legal and Evidentiary Issues

• Adequacy of Dexterra’s investigation into workplace bullying and harassment complaints under the Workers Compensation Act.

• Whether the employer’s failures created a high risk of serious injury, justifying administrative penalties.

• Procedural fairness and impartiality in the Board’s review and reconsideration processes.

• Determination of intentionality versus negligence in Dexterra’s handling of workplace investigations.

• Application of Board policies regarding occupational health and safety, including criteria for imposing penalties.

• Scope of judicial review and the standard for reviewing administrative decisions in this context.

Facts of the case

In 2020, Corrine Pereira was employed by Dexterra Group as a guest service agent and front desk clerk at a lodge in Kitimat, British Columbia. In June 2020, her supervisor informed her of a complaint alleging disrespectful behavior towards co-workers, resulting in a verbal warning for violations of Dexterra’s code of conduct. Ms. Pereira was not told who made the complaint nor was she given an opportunity to respond. She alleged the complaint was false and that she was a victim of bullying and harassment by co-workers. Ms. Pereira filed a grievance through her union and made a complaint under Dexterra’s Respectful Workplace Policy, describing the conduct as “mobbing.” She subsequently took medical leave due to anxiety from the workplace conflict. On June 30, 2020, Ms. Pereira filed a complaint with the Workers’ Compensation Board (WorkSafeBC), alleging Dexterra failed to provide a safe workplace and did not properly investigate her harassment complaint. The union settled her grievance without a determination in her favor, and Dexterra terminated her employment on September 23, 2020.

Procedural history and Board investigations

The 2020 mobbing complaint proceeded before the Board. On January 24, 2022, an occupational safety officer found Dexterra’s response compliant with Board requirements. On May 4, 2022, a review officer confirmed this decision. However, Ms. Pereira was successful in a judicial review, which found the review officer’s decision unreasonable for failing to conduct a full investigation, and the matter was remitted to the Board for reconsideration. On December 15, 2022, the review officer found Dexterra’s investigation did not meet requirements and referred the matter back to the Board. On January 23, 2023, the Board issued an order that Dexterra had violated s. 21(1)(a) of the Workers Compensation Act by inadequately investigating the 2020 mobbing complaint and ordered a new investigation, which Dexterra conducted in February and March 2023. On July 26, 2023, the Board found Dexterra’s 2023 investigation sufficient. No penalty was issued in respect of the 2020 mobbing violation order. The Board also investigated Dexterra’s response to the 2020 complaint made by Ms. Pereira’s co-workers and found it non-compliant, issuing orders under ss. 21(1)(a) and 21(2)(e) of the Act. No penalty was issued in respect of these violation orders either. On December 4, 2023, an internal review confirmed the violation orders. On December 21, 2023, a reconsideration request was denied by the Board’s chief review officer. Ms. Pereira’s subsequent application for judicial review was dismissed, leading to this appeal.

Policy terms and legal framework

The Board’s mandate under the Workers Compensation Act includes regulation of occupational health and safety standards. Section 21(1) requires employers to ensure the health and safety of workers and comply with OHS provisions. Employers must establish OHS policies and programs and provide necessary information, instruction, training, and supervision. Policy P2-21-2 requires employers to take all reasonable steps to prevent or minimize workplace bullying and harassment. The Board may impose administrative penalties under s. 94 and higher penalties under s. 95 for high-risk violations. Policy P2-95-1 gives officers discretion to impose penalties for motivating compliance, considering factors such as potential for serious injury, compliance history, and whether other enforcement tools are more appropriate. Policy P2-95-2 sets criteria for determining high-risk violations, focusing on the likelihood and seriousness of injury or illness.

Appeal and issues on review

Ms. Pereira raised two main grounds of appeal: first, that the Board failed to properly assess the risk of serious injury associated with Dexterra’s failure to adequately investigate the 2020 mobbing complaint and should have imposed penalties; second, that the Board endorsed Dexterra’s inadequate and partial investigation, breaching procedural fairness and demonstrating bias. She also challenged findings on intentionality and sought that the matter be remitted to consider administrative penalties for both the 2020 mobbing violation order and the 2020 co-workers’ violation orders. The Board submitted that it properly assessed risk, intentionality, and other factors, and that the review officer conducted an impartial review.

Outcome and disposition

The Court of Appeal for British Columbia dismissed the appeal. The Court found the review officer reasonably assessed the risk of serious harm, applied Board policy, and exercised appropriate discretion in declining to impose penalties. The Court also found no evidence of bias or procedural unfairness. The decision of the review officer was found to be reasonable and fair. No costs or damages were awarded, and no monetary amount was ordered in favor of the successful party.