Canada: OHS Enforcement: Lessons From The Burns Lake Fire

Last Updated: March 18 2014
Article by David G. Myrol

Alberta is entering a new era of Occupational Health and Safety ("OHS") enforcement with legislation now in force which empowers OHS Officers to impose "administrative penalties" and issue "tickets" for OHS violations. While the legislation has been in force since October 2013 and January 2014, respectively, those powers have not been exercised by OHS Officers as of the date of this article. They soon will be once the necessary framework is in place, which includes, amongst other things, training for OHS Officers to officially become "peace officers".

Predicting the impact of these new enforcement tools is uncertain as many questions regarding the details of how the legislation will be enforced remain unanswered. The list of questions is long. For example, will an employer be notified of a worker's OHS ticket? Does notification violate the worker's privacy rights? How should the employer respond if notice is given about the violation? Does the employer discipline the worker over and above the ticket? Does the employer have a choice? What if the employer does not discipline the worker and the worker is later injured for the same violation? Will the failure to act be used against the employer? Will a history of worker violations be used against the employer in a subsequent prosecution? This is just a small sample of the kinds of questions arising with respect to tickets and administrative penalties. The list of questions goes on and on. Undoubtedly, those issues will be causing headaches for some time.

In the meantime, as Alberta makes its way through this new era of enforcement, we have the benefit of learning from a recent experience in British Columbia, one which provides insight for OHS regulators, prosecutors and employers.

For many years WorkSafeBC ("WSBC"), the OHS Regulator in British Columbia, has primarily relied on the use of administrative penalties to enforce its OHS laws. There is the ability to commence formal OHS regulatory and criminal prosecutions in B.C., but those types of charges are seldom laid in B.C. Instead, by far the vast majority of focus on OHS enforcement over the last decade has been on the use of administrative penalties. The administrative penalty system in B.C. does not embrace the same evidential and procedural safeguards which are found in a formal OHS regulatory or criminal prosecution. This has its advantages and disadvantages. One of the disadvantages is that the lack of scrutiny on the quality of the investigation in the administrative system can set investigators up for failure when they transition the investigation from the administrative penalty system to a formal prosecution. The reason is because the latter has stricter investigative requirements to introduce evidence. It is a transitional problem in the sense that investigative flaws only become material when a formal prosecution is contemplated.

This problem was recently illustrated in the tragedy at the Babine Forest Products sawmill at Burns Lake, British Columbia, where a fire and explosion(s) occurred in January 2012 which resulted in the deaths of two workers and 20 workers being injured, some seriously. An investigation into the fire was conducted by the RCMP and WSBC. Neither agency recommended criminal charges, but WSBC submitted a report to the Criminal Justice Branch of British Columbia ("CJB") with a recommendation that OHS regulatory charges be laid against the employer. The CJB has pre-charge approval and without their consent, no charges can be laid. No charges were recommended by WSBC against any individuals. The CJB reviewed the investigation, met several times with WSBC investigators, and ultimately concluded there was "no substantial likelihood of conviction", and accordingly, refused to approve charges as recommended by WSBC. The CJB issued a media statement explaining their reasons for their decision. Those supporting reasons included the inadmissibility of certain evidence, inconsistent expert evidence regarding the cause of the fire, the strength of the due diligence defence available to the employer, and challenges from unexplored avenues of investigative inquiry. It sounds bad, but the decision not to prosecute appears largely based on the strength of the due diligence defence available to the employer and the inability of the Crown to rebut that defence.

WSBC also issued its own media statement regarding the decision not to prosecute, which to some, appeared misleading in certain respects. Frustration and rhetoric ran high and eventually the Premier of B.C. intervened and directed her Deputy Minister to review the situation and make recommendations remedy it. The Deputy Minister, John Dyble, prepared a formal report which was released on February 6, 2014, and contained 13 recommendations to improve the process. The full report, together with the media statements from the CJB and WSBC can be reviewed at: The Premier obviously was not impressed with the investigation and adopted all of the recommendations of Deputy Minister Dyble. The Premier was not pleased with the situation and was quoted in the media as saying: "I'm deeply disappointed with the way WorkSafe conducted this investigation....This must be fixed."

What are some of the important lessons from the Burns Lake fire? The first is to recognize there is an important legal line that is crossed when regulators move from an "inspection or audit" into an "investigation" aimed at collecting evidence to sustain a prosecution. Once the line is crossed by a regulator, evidential and procedural safeguards are triggered, and evidence can be rendered inadmissible in court if the regulator fails to respect those safeguards. This comes as no surprise. The Supreme Court of Canada formally recognized this principle in 2002 in two decisions, R. v. Ling and R. v. Jarvis, both tax cases. In those cases, the Supreme Court of Canada held that an individual is entitled to Charter and other evidential and procedural protections when a tax "audit" becomes an "investigation" for breaches of the Tax Act. This principle applies equally to most regulatory agencies including OHS investigations. At some point in time, an inspection, or even an investigation to determine the ""cause" of the accident", may arguably cross the line and transition into an "investigation" to collect evidence to lay charges in a formal prosecution. Failing to recognize this fundamental difference can lead to evidence being inadmissible. Better planning, training and communication for investigators and prosecutors can prevent the situation, or so the incident at Burns Lake tells us.

The incident at Burns Lake also teaches the value of having a due diligence defence in the first instance. It is important to remember the prosecutors concluded there was sufficient evidence to sustain an OHS regulatory prosecution notwithstanding any evidence that would have been excluded as inadmissible. In other words, the remaining admissible evidence would have justified a prosecution but for the potential due diligence defence available to the employer and the inability of the prosecutors to rebut that defence. If not for the due diligence evidence on the part of the employer, the decision to prosecute might have been different. An important lesson for employers to keep in mind when resourcing their health and safety management system.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David G. Myrol
Events from this Firm
27 Oct 2016, Seminar, Edmonton, Canada

Alberta is going through a difficult economic period. These times can be challenging and while owners struggle to get their business through the rough patch, they want to preserve the assets and capital they have built up.

2 Nov 2016, Webinar, Calgary, Canada

“Problem Employees” come in a variety of forms but seem to take up the majority of an employer’s time. Each form brings its own challenges and each must be addressed in a different way.

30 Nov 2016, Webinar, Calgary, Canada

Legal issues surrounding contaminated sites affects landowners, developers, realtors, as well as consultants and contractors working on the front lines. This webinar will provide a practical review of how the legislation is actually being used, recent court decisions, challenges with brownfield developments, and future changes.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.