Out of Reach

It has been more than two years since an explosion and a fire killed two workers and injured 20 at the Babine Forest Products sawmill, east of Burns Lake in British Columbia. Today, a legal controversy surrounds WorkSafeBC’s investigation process, which played a role in the Criminal Justice Branch’s decision not to press criminal charges against the sawmill.

In January 10, British Columbia’s Criminal Justice Branch (CJB) announced that criminal or regulatory charges would not be laid against the Babine Forest Products sawmill, in relation to the explosion that had killed two workers and injured 20 others in January of 2012.

Following this disclosure, the provincial government, headed by Premier Christy Clark, initiated an inquiry into WorkSafeBC’s investigation. The resulting report, Babine Explosion Investigation: Fact Pattern and Recommendations, was published on February 13. Written by John Dyble, Clark’s deputy minister and the British Columbia head of public service, the report claims that WorkSafeBC’s method of gathering evidence was unsatisfactory and that the organization failed to consider important legal precedents regarding evidence collection for criminal prosecution, particularly the Ling and Jarvis cases from November of 2002.

These cases established the framework for any investigation in which the focus switches from finding out what caused an event to gathering evidence of a criminal or regulatory offence. “Warrantless, administrative inspection powers cannot be used to gather evidence for an investigation into possible regulatory charges once such an investigation has commenced,” the report concludes.

Although the CJB sent an email to WorkSafeBC last November, raising concerns that the safety agency’s investigation was not consistent with the Ling and Jarvis precedents, WorkSafeBC responded that its strategy had been to “collect all the evidence, then make a decision about pursuing charges against Babine,” and that this was a decision that fell within its independent discretion. As a result, the inadmissibility of the evidence became one of the factors that resulted in the CJB’s decision not to press charges.

The Ling and Jarvis cases dealt with the issue of whether tax audits could be used to investigate or prosecute offences under the Income Tax Act without violating the taxpayer’s rights under the Charter of Rights and Freedoms.

The Supreme Court’s 2002 decision was that an individual whose audit subsequently became an investigation was entitled to the same Charter protections as an individual faced with an investigation from the outset. This ruling has implications for other regulatory contexts employing broad inquiry powers to compel information and regulatory offences that may entail penal consequences.

“WorkSafeBC’s examination of the fire site and the related inquiries were all conducted as a safety-compliance inspection, rather than as an investigation into possible criminal or regulatory enforcement,” explains Neil MacKenzie, communications counsel with the CJB in Victoria. “This approach did not adequately take into account the legal requirements for the collection of evidence that apply when it is understood that the evidence gathered by an agency may subsequently be used for the purposes of prosecution.”

Dyble’s report includes a series of recommendations concerned mostly with improving the working relationship between WorkSafeBC and the CJB. Mackenzie says the report “recognizes the importance of investigatory and prosecutorial independence, while at the same time identifying the benefits of increased communication and cooperation.”

Err on Caution

Shortly after the report’s publication, WorkSafeBC said in a statement that it appreciated the opportunity to participate in the review and was beginning work on the recommendations.

“This report addresses the law and the procedures that underpin investigation and referral for prosecution to the Crown under the Workers Compensation Act; it is a valuable document, and WorkSafeBC will be working quickly towards implementation of the recommendations,” the statement reads.

“Our government takes workplace safety seriously and has made it a priority to examine ways to ensure effective, thorough investigations when workplace fatalities occur,” Shirley Bond, British Columbia’s Minister of Jobs, Tourism and Skills Training, says from Victoria.

She adds that the CJB’s decisions on whether to prosecute oh&s incidents are independent of the government. “We have been clear that we expect more from employers.”

WorkSafeBC claimed that its investigation had been one of the largest scene examinations in the history of the safety agency and the province. The investigation took about three months and involved an examination of more than 700 exhibits, 14,000 photographs, in excess of 100 interviews and tests of several different hypotheses as to the cause of the explosion.

Harry Bains, opposition critic for WorkSafeBC and an NDP member of the British Columbia legislature representing Surrey Newton, feels that the government report is an unfair assessment of WorkSafeBC’s efforts, partly due to the lack of objectivity. “John Dyble is the right-hand person of the premier, as a deputy minister to the premier. His mandate and, I think, the appearance of not being neutral and independent also clogged the issue,” he suggests.

Bains adds that Dyble’s role did not have the scope to expand WorkSafeBC’s investigation or to assess the strength of the working relationship between WorkSafeBC and the CJB. “Also, Mr. Dyble did not look at who was responsible if it was a preventable incident, as WorkSafeBC has said it was preventable,” he notes.

Mackenzie counters that it was still up to WorkSafeBC to decide the course of its investigation, regardless of Dyble’s credibility. “Anytime an agency considers that regulatory charges are probable,” he says, “evidentiary precautions must be taken and any evidence collected in the absence of these precautions will face potential admissibility issues.”

Which Way to Go?

Several kinds of charges can result from an investigation like the one that looked into the Babine incident: charges under the Criminal Code of Canada; regulatory charges under British Columbia’s law; and administrative penalties for breaching the province’s Workers Compensation Act.

As Mackenzie points out, agencies like WorkSafeBC or the police have to assess each separate case based on its individual circumstances when determining whether to proceed with charges as a possibility. While the CJB can provide advice, he says “it is ultimately the decision of the investigating agency to determine the specific course an investigation will take.”

But the potential for charges may not be apparent at the beginning. So how does a workers’ compensation board determine if criminal charges should be part of the equation in such an investigation, without the benefit of hindsight?

Bains suggests that all occupational injuries and fatalities should be treated as non-workplace incidents. “That would require a Crown prosecutor,” he says. “And we need WorkSafeBC inspectors and RCMP or the local police trained in order to conduct the investigation, so they view workplace death as a homicide.” Bains points out that this has not been happening. “That is what’s needed, and also there needs to be a specialized policy.”

Lawyer Heather Hettiarachchi, chair of the labour and employment practice group with Vancouver law firm Clark Wilson LLP, cites the Workers Compensation Act when explaining the difference between a workplace safety investigation and a criminal one.

Under section 185 of the Act, for example, an officer conducting a safety inspection has the authority to seize evidence without a warrant under certain conditions, and under section 88, the officer may make any inquiry necessary to the investigation.

“But once it goes from a mere inspection and into an investigation where they know they are probably going to ask Crown Counsel to lay charges,” she says, “they actually do have to follow the same process that would be used under the criminal court.”

Hettiarachchi adds that the processes for both types of investigation are almost parallel. A safety inspection has more to do with ongoing training — showing companies that they should remedy certain shortcomings — whereas a criminal one is to communicate “that safety standards have to be adhered to and that employers should take notice that there will be consequences if they don’t do that.”

Like Bains, Hettiarachchi also believes that the safest route might be for WorkSafeBC to begin every investigation with the possibility of criminal charges in mind. “The standard of proof of both the private and regulatory regime, as well as the criminal court, is the same,” she says. “If you know that you are going to proceed down that track, then you would have to expressly follow all of the precautions and Charter rights.”

No Consequences

Bond points out that a number of entities examine workplace investigations. “Our government has a provincial inter-agency group that looks at how workplace fatalities are investigated,” she says, citing representatives from the Ministry of Justice, RCMP, municipal police agencies and WorkSafeBC.

This group is currently drafting a Memorandum of Understanding that specifically defines the roles of both WorkSafeBC and the police during investigations, while considering enhanced training for both.

But some say the British Columbia government’s criticism of WorkSafeBC exposes a larger, ongoing problem: employers in the province are just not facing criminal responsibility for safety negligence when it comes to workers. Jim Sinclair, president of the British Columbia Federation of Labour in Vancouver, charges that employers across many sectors in the province have avoided criminal prosecution following employee fatalities.

“The government has not sent a strong enough message to the Crown that it is in the public interest that workers should not die on the job,” Sinclair says. “Criminal negligence on the part of the employer is not considered a charge, even though the Criminal Act was amended 12 years ago to include ‘criminal negligence leading to death’ charges against employers. We have yet in British Columbia to see one of those charges laid.”

Regarding the Babine case, Sinclair believes that there was never any intention to file charges. “The RCMP went and investigated for less than 48 hours and left town. And that is one of the fundamental flaws in the whole system, is that when it comes to criminal charges, there is no commitment by the RCMP in almost every case,” he argues. “This highlights the lack of commitment we have to any kind of real consequences for what could, in many ways, be described as criminal behaviour.”

Hettiarachchi alludes to the difficulty in bringing the criminal element into an investigation of a workplace incident. In criminal law, “you have to be able to show a wanton or a just disregard for the safety and the life of these workers,” she says. “That is a very, very high standard, whereas under the regulatory regime, you would not show that; you are working for strict liability offence.”

Sinclair does not blame WorkSafeBC for what has been deemed a bungled investigation. “They did a very good report. I think they are being made a scapegoat in part in this story, and unfairly in some respects.”

He adds that he anticipates the agency will be more careful when it comes to adopting the proper methods when collecting evidence in the future.

Dust to Dust

Although WorkSafeBC’s efforts did not result in criminal charges, the agency concluded that Babine had the ability to prevent the explosion. Its report revealed that Babine had not taken adequate action to control the amount of flammable airborne dust in the mill or the large accumulation of dust on its floors and other surfaces. While the company was in the process of upgrading its undersized dust-management system, an increase in the mill’s production slowed down the project. Inadequate inspection of equipment and insufficient supervision of maintenance staff were also contributing factors.

WorkSafeBC was not the only organization that investigated the Babine disaster. The BC Safety Authority (BCSA), an independent group based in New Westminster that monitors the installation and use of technical equipment for safe practices, had already conducted an investigation of the mill after a smaller explosion and fire occurred in February of 2011.

As such, it was well prepared to examine the incident that took place the following year. The BCSA agreed with WorkSafeBC’s conclusion that a failure to control the dangers of combustible wood dust had caused the explosion.

“As a result, we have issued three safety orders since 2012, and in January 2013, we published a Recommendations Report with nine recommendations to improve safety in the wood-processing industry,” says Stephen Hinde, the BCSA’s safety manager for alternative safety approaches and enforcement. Hinde explains that safety orders differ from WorkSafeBC’s directive orders in that the former deal with hazards relating to technical equipment. “Compliance with a safety order is mandatory, and failure to do so can result in penalties.”

In its own investigation report on Babine, the BCSA recommends that all wood-processing plants in the province conduct facility assessments to identify hazardous locations and either implement dust-management practices for those locations or configure the equipment for safe operation. Facilities should also include hazardous locations and methods of controlling combustion hazards in their fire-safety plans, the report advises.

Sinclair posits that the real problem is that WorkSafeBC did not do its job properly before the explosion, when it was already widely known that dust accumulation in the mill was a serious hazard. “They put out an order in 2010, a blanket statement to all the industry, ‘Dust levels are dangerous, and it could lead to explosions.’”

But Sinclair says WorkSafeBC wrote no orders to close down Babine or any other mill. “They only wrote an order on this place because it was affecting workers’ health in their breathing, which is one way of killing you. But they did not write the order because of the explosive problem.”

Tough but Fair

Less than two months after the release of Dyble’s report, WorkSafeBC announced on April 3 that it had ordered Babine to pay an administrative penalty of $97,500 and a claims-cost levy of $914,139.62.

This decision followed WorkSafeBC’s three-month inspection of all active sawmills in the province, which found that only 83 (or 58 per cent) of the 144 mills to be in compliance regarding combustible dust. The agency issued 93 orders, including 13 stop-work orders and 17 warning letters.

In addition, the government, WorkSafeBC, the province’s forest industry and organized labour have joined forces on a 90-day action plan that includes doubling the size of WorkSafeBC’s designated inspection team and penalizing non-compliant firms. Bond reveals that the government is also taking action to educate WorkSafeBC on how to conduct proper investigations.

“A number of training supports and educational seminars are under way or in planning,” she says. Recently, the Ministry of Jobs, Tourism and Skills Training launched a series of information meetings between WorkSafeBC and members of the sawmill industry.

While Sinclair agrees with Dyble’s conclusion that there needs to be a closer working relationship between WorkSafeBC and the CJB when investigating workplace incidents and fatalities, he stresses that tougher safety enforcement on British Columbia’s employers is more important.

“I think people miss, somehow, the underlying causes for why these things happened,” Sinclair suggests. “Babine, because of the attention paid to it, was an eye-opener to a much more fundamental problem in the system. It is not just about how you gather the evidence; it is what you do with it too.”

Bains agrees that a stricter stance on safety is vital — that all authorities in British Columbia need to approach workplace tragedies with the same seriousness that they would for any other tragedy. Companies need to get a clear message “that workplace deaths and injury, due to negligence of those responsible for their health and safety, will be dealt with severely.”

Hefty fines or jail terms will serve as strong deterrents if they are found guilty and do justice to those who end up losing their lives or getting seriously injured, he adds.

“We want to make sure that the people who go to those jobs and their families know that they are going to come home safe every day,” Bond says. “It is incumbent on all of us — whether it is WorkSafeBC, organized labour, government or industry — to ensure that we are relentless in pursuing safe workplaces.”

Jeff Cottrill is editorial assistant of OHS CANADA.

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