Published on: January 10, 2014

Burns Lake, British Columbia, — Crown Announces No Charges against Babine Forest Products

WorkSafeBC Speaks to Families and Workers

Jeff Dolan, Director of Investigations, WorkSafeBC

I would like to begin by thanking the community of Burns Lake and specifically the families of Mr. Charlie and Mr. Luggi and every worker and family affected by this tragedy for the opportunity to speak with you today.

Crown has communicated its Clear Statement that no charges will be approved against Babine Forest Products (Babine) following the January 20, 2012 explosion and fire that killed 2 workers and injured many others. A two year process with two distinct phases has led us to this point.

WorkSafeBC as the investigative agency was responsible for gathering the evidence. Following our investigation Crown Counsel considered that evidence to assess whether it is sufficient to approve charges.

This morning Crown outlined their process for considering the evidence gathered by an investigative agency in assessing whether there is sufficient basis to approve charges and has also clearly stated their reasons for not approving charges against Babine.

I am here today to speak for WorkSafeBC about the investigation and next steps.

Before I proceed, it is important that I reinforce that today's announcement will not in any way affect the existing claims of anyone in this room or anyone else affected by the Babine incident. If you have any questions regarding your claim please contact your claim manager.

Charges are only approved where Crown Counsel is satisfied that (1) the evidence gathered by the investigative agency provides a substantial likelihood of conviction, and if so, that (2) a prosecution is required in the public interest.

Crown has stated there is no substantial likelihood of conviction for any of the regulatory offences recommended following the WorkSafeBC investigation of the Babine incident citing two reasons:

1. The inadmissibility of some of the evidence gathered by investigators, and
2. The defence of due diligence

Crown has concluded that the manner with which investigators gathered some of the evidence under the authority of the Workers Compensation Act (the Act) would likely render it inadmissible in court.

Notwithstanding that fact, Crown Counsel was satisfied that the remainder of the available and admissible evidence provides a sufficient factual underpinning for a number of potential offences under provincial legislation.

The remaining admissible evidence does support, to the standard of proof beyond a reasonable doubt, (i) a theory that there was sawdust in the mill at the time of ignition and that the sawdust was at least one fuel for the fire; (ii) at the time of the incident, there was an accumulation of sawdust in the sawmill. The preponderance of the evidence is that dust conditions in the mill were relatively good, but imperfect, at the time of the incident; (iii) the evidence shows that Babine workers were killed and injured in the workplace in this incident.

Given that the sawmill ignited, burned and exploded, accumulated sawdust was one factor in the fire, and workers were killed and injured; Crown has stated that they would likely be able to prove the underlying factual elements of the alleged unlawful acts.

This evidence provides a factual basis to support a case on four regulatory charges:

• Failing to prevent hazardous accumulation of material, contrary to 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 the WCA, s.115(1); and
• Failing to remedy hazardous workplace conditions, contrary to WCA s.115(2)

('OHSR' Occupational Health and Safety Regulation; 'WCA' Workers Compensation Act)

The Crown has, however, concluded that the defence of due diligence and its branches of foreseeability and reasonable measures would reasonably be open to the employer and as a result there is no substantial likelihood of a conviction on any of the charges recommended by WorkSafeBC.

In addition to outlining the assessment of the evidence and how Crown arrived at its decision, the clear statement provides comment on the investigative theories of the cause of the explosion and fire. I will not be commenting on these theories for two reasons:

• The detailed investigation report into the explosion and fire at the Babine will be released during the week of January 13, 2014; first to the Luggi and Charlie families and the injured workers prior to a public release that same day.
• Now that Crown has decided that no charges will be approved against Babine, WorkSafeBC investigators are considering appropriate orders and the next steps under the act, including the possibility of recommending an administrative penalty against Babine.

For these two reasons it is not appropriate for me to comment on the due diligence defence, since it can be raised by the employer should they request a review of any orders or penalty issued to them.

I would however like to speak to Crown's statements regarding the admissibility of evidence collected during the course of this investigation.

WorkSafeBC respects the fact that Crown thoroughly assessed the admissibility of all of the evidence presented to them, as well as any defences that could reasonably arise on behalf of Babine.

WorkSafeBC appreciates the fact that in deciding whether there is a substantial likelihood of conviction, Crown must consider any viable defences that could be asserted by a defendant should charges be approved.

My reason for speaking to the admissibility of evidence is to preserve the public's trust in our investigations, which WorkSafeBC has worked very hard to earn, and to maintain public confidence in our investigations.

WorkSafeBC responds to and investigates all reported workplace incidents that result in serious injury or death of a worker to determine the cause and underlying factors that led to the incident. Our officers conduct investigations under the authority of the Workers Compensation Act (the 'Act').

Under the Act, a WorkSafeBC officer has the authority to enter a workplace and conduct an investigation for the purpose of ascertaining the facts and circumstances of a work related incident, injury, illness or death. This regularly includes the taking of photographs and other recordings. Officers can, and most often do, require that a workplace or part of a workplace remain undisturbed for a reasonable period of time until the examination is complete.

The Act further allows for officers to employ the appropriate equipment, methods and external expertise for conducting their examination of materials, debris, equipment, machinery or other things at that place. Officers may remove samples and conduct further tests of machines, materials or other things found at that place.

The Act states that, when conducting an investigation, an officer may require that records (e.g. of training, inspection, Occupational Health and Safety meetings) be produced so that they may be inspected and copied. Officers may also question or interview persons regarding matters that may be relevant to the incident being investigated.

For at least the past decade, WorkSafeBC officers have conducted investigations of fatal and/or serious injury incidents at workplaces under the authorities that I have just listed. This includes the Babine investigation.

At the time of the Babine explosion, WorkSafeBC conducted its investigation using a methodology that involves collecting information from various sources to understand the facts and circumstances of the incident and analyzing that information to identify causal and underlying factors that led to the incident.

Our officers attended the Babine site within hours of the explosion and fire and remained at the site for 13 weeks, conducting one of, if not the largest, scene examination in the history of WorkSafeBC and the province.

In the case of Babine the investigation also applied the principles set out in the National Fire Protection Association (NFPA) 921, Guide for Fire and Explosion Investigations, including:

• Securing and examining the incident site — officers were on site for 10 weeks (after waiting approx. 3 weeks for safe access)
• Taking notes and (14,000) photographs
• Securing and examining in excess of 700 exhibits including any equipment involved, documentation and other things
• Interviewing over 100 mill workers, management and other persons with relevant information
• Establishing the origin of the explosion and the ignition source
• Identifying blast and thermal damage
• Developing different hypotheses to explain the explosion
• Testing these hypotheses to eliminate them or confirm their validity
• Conducting tests of materials or equipment that may have contributed to the incident

Analysis of the data included:

• Determining a sequence of events that led to the explosion
• Examining the contributory events for unsafe acts and conditions
• Exploring the underlying factors that made the unsafe acts or conditions possible
• Identifying health and safety deficiencies

The analysis was conducted by a team of 30 people over the course of 10 months and experts and laboratories in BC, Eastern Canada and the USA were also enlisted to assist with the analysis.

Under the authority of the Workers Compensation Act this evolving investigative methodology has been employed by WorkSafeBC for at least the past decade to investigate major workplace incidents, including the multiple fatality confined space incident at a Langley Mushroom Farm in 2008, which led to Workers Compensation Act charges being approved by Crown Counsel in 2010 and ultimately led to a conviction in 2011.

Since April 2012 the evolving WorkSafeBC investigative methodology has progressively adopted the theories and methodologies of major case management referenced by Crown.

As the causes and underlying factors of an incident are identified WorkSafeBC has the responsibility to inform the public and make recommendations to the affected industry that may serve to prevent future injury, disease or death.

Beginning in May of 2012, as we slowly began to understand what may have occurred at Babine, and by that point the Lakeland Mills sawmill, WorkSafeBC began to publicly share its findings with workers, their families, industry and other stakeholders.

At the conclusion of an investigation officers will identify any violations of the Act and OHSR. The Babine investigation was concluded in late November of 2012, at which time investigators turned their minds to identifying possible violations of the Act and OHSR based on the complete information available to them.

Under the Act employers can be fined or penalized for violations of the Act or OHSR for failure to take sufficient precautions to prevent work-related injury or for having an unsafe workplace or working conditions.

Reserved for the most serious workplace incidents, an employer may also be prosecuted in provincial court for a violation of the Workers Compensation Act or OHSR. WorkSafeBC will pursue a prosecution where the circumstances are such that the public interest in protecting worker health and safety is better served by that process over administrative remedies.

In late November 2012, after considering all of the available facts of the circumstances that led to the Babine explosion and fire, a Report to Crown Counsel was submitted for consideration of charges under the Workers Compensation Act.

In September of last year this evidence was ultimately organized into a final electronic Report to Crown Counsel comprised of tens of thousands of pages of evidence for consideration of charges.

WorkSafeBC accepts Crown Counsel's decision that no charges will be approved against Babine. We also acknowledge the reasons set out in the Clear Statement including the opinion of Crown Counsel with respect to challenges to the admissibility of evidence that may have arisen from the manner in which evidence was collected, including whether there was compliance with the Charter of Rights and Freedoms, or with other statutory and legal requirements.

Prior to the Babine investigation Crown Counsel approved charges in 31 cases between 1996 and 2010, 24 of which resulted in a conviction.

In the 31 cases WorkSafeBC investigators gathered and submitted evidence to Crown Counsel using the WorkSafeBC investigation methodologies and authorities granted by the Workers Compensation Act.

Looking ahead WorkSafeBC respects the evolution of the legal requirements, including the application of the Charter of Rights and Freedoms, evidentiary rules, and relevant case law that must be considered when conducting workplace incident investigations that may ultimately result in a referral to Crown Counsel for prosecution.

Next Steps

The Babine Incident Investigation Report will be released during the week of January 13th, 2014. WorkSafeBC subject matter experts, critical incident response specialists and counselors will be in the community, or elsewhere as required, to meet with the families and injured workers.

The Investigation Report will be made available on the worksafebc.com website later that same day.

At present, WorkSafeBC investigators and legal officers are considering the Act and Regulation and any appropriate responses including orders and the possibility of recommending an administrative penalty.

I have no more information for you at this time. You will be contacted early next week by members of our staff who will explain how you will be receiving a copy of our Investigation report. As well, arrangements will be made for you to meet with our investigators to review the report if you so wish.

I may be able to answer some of your questions, but, as I have said, I will not be able to speak to the due diligence defence identified by Crown Counsel as this is a matter to be considered and evaluated in our administrative penalty considerations.

We will share more information with you regarding possible orders and penalties against the employer following the release of the Investigation Report.

Thank you.