Canada: Babine Sawmill Explosion Investigation - Analysis Of Issues

Last Updated: April 5 2014
Article by Heather Hettiarachchi

On January 10th of this year, the Criminal Justice Branch ("CJB") issued a statement that it would not be approving any regulatory charges against Babine Forest Products ("Babine") in respect of the January 20, 2012 fire and explosion at Babine's mill in Burns Lake, BC, which claimed the lives of two workers and injured 20 others (the "Incident"). The basis for CJB's decision not to proceed with regulatory charges against Babine (the "CJB Decision") was its finding that the investigation conducted by WorkSafeBC into the Incident, was flawed.

CJB Decision

WorkSafeBC gathered evidence and conducted its investigation at the Babine mill from January 26 – April 19, 2012. The investigation concluded in November 2012 and on September 4, 2013, WorkSafeBC submitted a Report to Crown Counsel recommending charges against Babine under the Workers Compensation Act (the "WCA"). The charges were:

  • failing to prevent hazardous accumulation of material, contrary to Occupational Health & Safety Regulation (the "OHSR") 4.41;
  • failing to safely remove combustible dust, contrary to OHSR 5.81;
  • failing to ensure the health and safety of workers, contrary to WCA, s. 115(1); and
  • failing to remedy hazardous workplace conditions, contrary to WCA, s.115(2).

WorkSafeBC did not recommend charges against individuals, or charges under the Canada Criminal Code.

In order to proceed with the charges, Crown Counsel had to be satisfied that: (a) there was a substantial likelihood of conviction; and (b) a prosecution was required in the public interest.

After examining the evidence presented by WorkSafeBC, Crown Counsel concluded that (a) the manner in which WorkSafeBC had conducted some of its investigation would make it likely that significant evidence would be inadmissible in court; and (b) without all of the evidence being admissible, Crown Counsel would not be able to prove the mechanics of the fire and explosion.

Crown Counsel then considered whether the remaining admissible evidence could support other potential offences under provincial legislation and concluded that it did but that Babine would likely be able to claim a due diligence defence on the basis that:

  • it did not foresee and could not reasonably have foreseen that sawdust could cause a catastrophic explosion as happened in the Incident; and
  • whatever the state of Babine's knowledge, it took reasonable measures to mitigate the risk.

As a result of the above, CJB opined that it could not proceed to lay charges against Babine as there was no substantial likelihood of conviction.

Problems with WorkSafeBC's Investigation

WorkSafeBC has extensive powers under the WCA, including power under s. 185 to make certain warrantless seizures.

The problem with WorkSafeBC's investigation into the Incident is that WorkSafeBC failed to limit its exercise of the warrantless inspection powers given to it under s. 185 of the WCA and to follow the framework for the admissibility of evidence in relation to regulatory investigations as set out in the 2002 Supreme Court of Canada decisions in R. v. Ling and R. v. Jarvis. These two cases dealt with tax offences under the Income Tax Act and the issue was whether evidence obtained during audits pursuant to the Income Tax Act could be used to further investigation or prosecution of offences under s. 239(1) of the Income Tax Act without violating the taxpayer's rights under the Charter of Rights and Freedoms (the "Charter"). The Supreme Court held that it could not, and that an individual whose audit subsequently became an investigation, was entitled to the same Charter protections as an individual who is faced with an investigation from the outset.

Applying the above reasoning, when the dominant purpose of WorkSafeBC's investigation of the Incident shifted from determining the cause of the explosion to collecting evidence for the purpose of establishing the regulatory offences, WorkSafeBC should have complied with Charter rules in the gathering of evidence, instead of using its warrantless administrative inspection powers. For example, WorkSafeBC should have cautioned interviewees about their right to remain silent.

In addition to the issues of admissibility, the CJB also identified challenges arising from unexplored avenues of investigative inquiry and conflicting expert opinion on the cause of the explosion as issues that led to its decision not to approve charges.

Aftermath of the CJB Decision

The Incident dealt a devastating blow to Burns Lake as the Babine mill had been the mainstay of the local economy since its opening in 1974 and when the CJB announced its decision, there was considerable public anger that no one was going to be held accountable for the Incident and the ensuing deaths and injuries.

As a result of the public outcry, Premier Clarke directed John Dyble, Deputy Minister to the Premier, Cabinet Secretary and Head of the Public Service, to review the issues surrounding WorkSafeBC's investigation into the Incident. This report which was released on February 6, 2014 (the "Report"), can be found here.

The Report noted that while WorkSafeBC had acted with the appropriate motivation and in the public interest and had conducted a very significant and extensive investigation, resulting in over 40,000 individual pieces of evidence, the investigative techniques employed by WorkSafeBC fell short of what was needed for successful regulatory investigation and prosecution. The Report also noted that there were shortcomings in the interactions between WorkSafeBC and CJB, and that there was a lack of processes for internal communication at WorkSafeBC.

The Report contains recommendations for improvement in three broad areas:

  • measures to improve interaction between investigating and prosecuting agencies;
  • improvement of policies, procedures and communications within WorkSafeBC; and
  • enhanced training and improved working relationships.

It is hoped that these recommendations will be implemented and that this will prevent a recurrence of the shortcomings that led to charges not being laid against Babine.

WorkSafeBC has just announced that it has imposed an administrative penalty of $97,500 against Babine. Together with a claims cost levy, the total fine against Babine is approximately $1 million. At the time of writing this article, it is the author's understanding that Babine intends to appeal the fine.

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 Mondaq.com.

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

Authors
Heather Hettiarachchi
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions