The B.C. Court of Appeal has upheld a WorkSafeBC decision to fine West Fraser Mills Ltd. in relation to the death of a tree faller working on a forest licence area held by the company.
West Fraser was seeking to overturn the decision, arguing the faller worked for a contractor and not directly for the company.
However, in a judgment issued Monday, a panel made up of three Appeal Court Justices found WorkSafeBC has the power to fine the owner of a work site, even if the victim's pay cheque came from another source.
In July 2011, WorkSafeBC issued a $75,000 fine after finding West Fraser failed to ensure the work was properly planned and conducted.
The faller, Charles Henry Engelbert, 29, identified only as E in the decision, died April 17, 2010 from injuries suffered while falling trees near Opheim Lake, about 70 kilometres northeast of Williams Lake.
Specifically, he was falling the trees to act as "traps" for the fir beetle. Once felled, the trees emit a "distress scent," said Justice Harvey Groberman in the judgment he wrote on behalf of the panel, that in turn attract the insects to the trees, sparing the nearby standing trees from infestation."
"Falling trap trees is difficult, high-hazard work. Unlike typical logging operations in a cut block, there is no large opening into which trees are felled. Trap trees are felled into confined spaces," Groberman noted.
Engelbert had 10 years experience as a faller and although he had let his faller's certificate expire in late 2009, he continued to work steadily, primarily on Haida Gwaii. His schedule consisted of 28 days in camp followed by 14 days off, and when away from camp, Engelbert sometimes worked for the contractor, identified only as Mr. G in the decision.
The work was scheduled for four days with trees to be felled at two locations. The day before the work began, a West Fraser representative met with the two on site and they did a walkthrough of the first area and discussed the potential hazards.
Three days later, a second meeting was held but appeared to have been less intensive.
"No notes were made of the second meeting, and it did not include any walkthrough to identify hazards or to determine a falling plan," Groberman said.
The day after, Engelbert was working at the second site and had already cut numerous trees when, just before 11 a.m., he felled a 45 metre fir tree.
"As he did so, a large rotten section of another fir tree four metres away from him broke," Groberman said. "The broken section of the tree, which was over 16 metres in length, struck Mr. Engelbert, causing severe injuries to the back of his head, his shoulder, ribs, and back."
Shortly afterwards, the contractor found Englebert "bloody and unresponsive" and due to the remote location, it took some time to summon help. Paramedics arrived on the scene 2 1/2 hours later and he was evacuated by helicopter to Williams Lake shortly before 4 p.m.
From there, he was transported to hospital in Kamloops where he died the following day.
In a subsequent report, WorkSafeBC found Englebert's work was substandard on the day of the incident and noted some unsafe practices: numerous trees had been felled into standing timber, resulting in excessive brushing; escape trails were blocked by previously felled trees and/or debris; and danger trees were not felled.
WorkSafeBC also made findings against West Fraser. Among them was that the company's representative had not been trained on how to assess a faller's workmanship; no procedures were in place to ensure a fall had valid certification; and there was no systematic evaluation of the hazards at the site.
"Had a walk-through of the area been done and the falling sequence planned, it might have been apparent that the work could not be completed within the time frame," WorkSafeBC noted in the report, as quoted in the decision.
In 2012, a coroner's inquest into Englebert's death ended with a jury issuing 10 recommendations to prevent a similar incident from happening again.
