Another poobah's report into WorkSafe B.C., another attempt by the B.C. Liberals to head off calls for an independent inquiry into the troubled provincial agency.
This time the poobah is temporary administrator Gord Macatee and the attempt is his plan to turn WorkSafe B.C. into a 'world class' entity after the agency infamously botched two investigations into deadly explosions at Burns Lake's Babine Forest Products and Prince George's Lakeland Mills in 2012.
Among the more severe criticisms levelled at the agency was that it failed to collect evidence during its initial examination of the sawmill explosions in a manner that would be admissible in court. To fix this, according to The Canadian Press, Macatee offers a sort of double-blind structure in which a WorkSafe investigation is potentially handled by two teams. The first conducts a normal workplace investigation using the agency's special powers - such as warrantless seizures - that are now frowned upon in the courts when it comes to Charter rights. If the investigation has the potential to lead to charges, the first team would 'down tools' and the probe would be handed over to the second team, isolated from the first team by an 'ethical wall', which would start from scratch obtaining warrants and warning employers of their rights.
Macatee's double-blind sounds quite baroque. Of more concern is the worry neither it nor Macatee's other reforms address the deficiencies of WorkSafe before the mill explosions.
In a statement on why it decided not to pursue charges based on Worksafe's investigations of and recommendations on the first blast, Babine, the Criminal Justice Branch was emphatic in its criticism of agency's techniques, saying its lack of standard major case management methodology left 'important issues partially or wholly unexamined' and it 'did not adequately take into account the legal requirements for the collection of evidence.' That said, the CJB did say Babine would likely succeed in mounting a 'due diligence' defence to rebut potential charges: namely that the firm did not know or could not have known of the risk of dangerous wood dust accumulations that are now known to be the cause of the blast (known as foreseeability) and it took reasonable measures to mitigate the risk.
In the Babine statement, the CJB cites WorkSafe testing at the Burns Lake mill in 2011 that dust levels were not at a level to create an explosion and a WorkSafe officer who reported Babine's dust levels "were about the same as those in other regional mills." It's hard to fault a firm when the regulatory agency overseeing it says its dust appeared OK before it detonated.
The CJB tack on the Lakeland blast, which occurred three months after Babine on April 23, 2012, is different. While similarly unimpressed by WorkSafe investigatory techniques, which Macatee addresses, it says the evidence it could use was sufficient to prove the charges the agency recommended against Lakeland's owners. In its statement on the second mill blast, the CJB emphasizes instead the strength of the employer's due diligence defence that made successfully prosecuting Lakeland`s owners unlikely.
The CJB does wonder why the WorkSafe investigation did not pursue 'direct evidence on the state of knowledge by Lakeland directors, officers and members of management in relation to sawdust conditions at the mill' - a critical piece of rebutting a due diligence defence. It also cites an inspection by two WSBC officers on Feb. 6, 2012 after an anonymous Lakeland worker phoned the agency to complain of the excessive buildup of sawdust.
One of the WSBC officers, who had knowlege of combustible dust fires, said they would testify that, after the Feb. 6 inspection, they did not believe there was a 'widespread problem of excessive dust' at Lakeland and decided not to issue an order against the mill. The other WSBC officer corroborates the first. The CJB said that inspection, as well as other WorkSafe actions including a March 15 meeting in which the agency could not provide Lakeland's parent company with much guidance on preventing a Babine-type explosion, contributed to the strength of a Lakeland defence.
It is doubtful there was anything nefarious in WorkSafe's role as a regulatory agency prior to either the Babine or Lakeland blast. It was only well after the fact that WorkSafe's investigations into the disasters concluded a combination of weather conditions, dry-pine beetle-infested wood, and industrial misunderstanding conspired to create the clouds of fine explosive dust that levelled the two mills.
But the fact is Macatee's report does not address how WorkSafe's regulatory shortcomings, including the Feb. 6 inspection, failed to spot the dangers at Lakeland even after the Babine blast months earlier. His report does not address, even as it attempts to mend flaws in WorkSafe's investigations, how those shortcomings subsequently provided much of the due diligence defence Lakeland's owners could use to effectively nullify any possibility they would face a criminal prosecution.
Macatee's and the B.C. Liberals' supposedly world-class regulatory regime will nevertheless still contain whatever flaws that contributed to the Lakeland debacle. His report is a start but if the Liberals are serious about keeping workers safe they must commit to an unclouded, unflinching examination of WorkSafe B.C. that only a full-fledged, independent inquiry into the northern B.C. sawmill blasts can provide.
