The December 2013 drowning death of Sudbury businessman Marc Lafreniere was accidental, a coroner's inquest ruled Thursday, but more oversight of the surface mining industry is needed to prevent future tragedies.
The one-day inquest detailed the events that led to Lafreniere's death on Dec. 28 six years ago, when he and family friend Jason Death were working at Marc Lafreniere Construction, an excavation business in Valley East he founded more than 25 years ago and now has more than 50 employees.
On that day, Lafreniere and Death were working on land he owned at the west end of Dominion Drive, where the company had been extracting black loam. Death testified Thursday he and Lafreniere headed out in the early afternoon. Death was driving an excavator and Lafreniere a loader, and they were working to compact the loam by driving over it repeatedly, so the makeshift road would be sturdy enough for vehicles to safety extract the loam.
Crown Attorney Susan Stothart said Death wasn't an employee, but was helping out while he was off for the Christmas break.
“He went out that day to help his friend,” Stothart told the three-woman, two-man inquest jury. “Marc and Jason were packing down the ground by driving over it with heavy equipment.”
“He was an all around good guy,” Death said of Lafreniere, who he described as a longtime friend who, like him was family-oriented. “There wasn’t many people who didn’t like him.”
Death testified that loam is found is extremely wet areas, making extraction more of a challenge.
“And wherever you dig out, water fills in,” he said.
On that day, Death had trouble navigating the excavator across the terrain. While he and Lafreniere were experienced drivers, Death said he wasn't familiar with that area of the property.
When one of the tracks on his excavator hit water, he stopped and called Lafreniere. They had both cellphones and two-way radios to communicate.
Because loam had been removed from the area before, Death had to navigate between the solid sections and the watery areas where loam had already been removed. A warm, sunny December day made it hard to tell what was ice and what was water, he said. And since he didn't know the area, he was worried.
“I felt it wasn’t safe,” Death said.
Lafreniere arrived and they switched vehicles, he said, since Lafreniere knew the property well.
“Then we parted ways.”
A short time later around 2 p.m. – Death got stuck on the icy road and called Lafreniere – but there was no answer. He assumed his friend had turned off the devices, and so Death called the nearby office, and staff came out to help get the loader free.
At that point, staff headed back to the office and Death went to check on Lafreniere. As he got close, he could tell something was wrong.
“I saw the excavator tipped over,” he said.
He raced over, jumped on top of the vehicle and looked inside the cab.
“I saw his hair in the water,” Death said. “And I'm pretty sure I saw his baseball cap floating in the water.”
He reached into the cab and pulled Lafreniere's upper body out of the water, but couldn't find a pulse or any life signs. He called 911, and then the office again to let them know. Death then waited, holding his friend's head above water, until help arrived.
The excavator Lafreniere was driving had one door on the driver's side, the windshield could be opened in an emergency, and the top of the cab could open like a hatch. But it fell on the left, driver's side and sunk into the water, leaving only the passenger side window facing upward – the one area where escaping the vehicle wasn't an option, unless he could have squeezed through metal bars that were about 12 inches apart.
“There was no way to get out,” Death said. “The whole entire cab was under the ice.”
Barry Stenabaugh, a since retired paramedic, said he arrived on the scene around 3:42 p.m. and staff took him to the accident site in a swamp buggy. His partner tried to revive Lafreniere – even sinking into the water as she tried to reach him, but it was too late.
“He was visible from the shoulders up,” Stenabaugh testified. “From his armpits down, it was black muck … The patient was vital signs absent at that point.”
Not only was Lafreniere found lying on his stomach under water, he had not been seen for 60-90 minutes, he said. They received an order to end resuscitation attempts just before 4 p.m.
At that point, they were told to leave the scene as it was, because of the drowning hazard. But Stenabaugh testified that family and friends pulled Lafreniere out of the vehicle anyway.
“It was an emotional scene, and it's understandable they wanted to do that,” he said. “But it was in a swamp, so doing so wasn’t safe.”
Kyle Watson, a Ministry of Labour inspector, was involved in the investigation two days after the tragedy. He testified that the business had followed all regulations, as well as orders from the ministry issued after the tragedy.
Those orders make up most of the jury's recommendations. Watson said before the tragedy, no separate rules existed for extracting black loam, and the rules governing underground mining don't apply to surface mining.
“Removal of black loam is not a very common thing a inspector would see,” Watson said.
The orders included marking off hazardous areas with fencing or sign posts with neon markings, having a minimum of two people working together when loam is being extracted.
When instructing the jury, Dr. Geoffrey Bond told them they could make recommendations for change, but they have to follow the law and had to be sensitive to the family.
"This death has deeply affected many individuals," Bond said. “Your job as a jury is to consider the evidence. Recommendations must come from the evidence. If your verdict does not follow the law, I must reject them.”
The jury returned 30 minutes later with four recommendations:
To the Ministry of Labour, they recommend providing proactive outreach and education to small surface miners on the guidelines and rules they have to follow. They also want the Ontario Health and Safety Act amended to include surface mining.
To industry health and safety associations, they recommend surface miners to use safety markers, flotation Argo units for transportation and inspection of roadways, having a minimum of two people on loam job sites, with communication available and staff working in loam areas should wear a flotation device.
Finally, they recommend training plans for operators of heavy equipment should include emergency exit procedures.