Criminal Trial Starts for U.S. Company Charged in Death of Young BC Worker
The criminal trial of Peter Kiewit Sons ULC and two company managers in the death of a 24-year-old construction worker began in Vancouver on September 6.
Sam Fitzpatrick, employed as a rock scaler, was struck and killed by a boulder in 2009 while working for Peter Kiewit Sons ULC on the Toba Inlet private power project near Powell River on the BC coast. Heavy equipment dislodged the huge rock from a work site above the slope where Sam, his brother Arlen, and others were working.
BC Worksafe investigators determined in 2011 that Fitzpatrick’s death was caused by being struck by a rock estimated to be over 1.5 metres in diameter. The company had allowed work to proceed without clearing loose material uphill from where Sam and his crew were working, Worksafe said. The Worksafe investigation also found that prior to the day of the accident on February 22, supervisors were well aware of the danger from loose rock and had documented the possibility of a rockfall. Investigators also discovered that the day before the young man’s death, falling rock had damaged equipment at the same site where Sam, his brother and others were working. The company was fined $250,000 but appealed and in 2013 the fine was reduced to less than $100,000.
The company and two individuals who were supervisors at the worksite at the time of Sam Fitzpatrick’s death have been charged under section 217.1 of the Criminal Code, which states, “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
Amendments to the Criminal Code, including section 217.1, arise from the federal “Westray Bill” C-45, which became law on March 31, 2004. The law imposes criminal liability on organizations and their representatives for negligence and other offences, and provides penalties of up to life imprisonment.
The charges, brought by the RCMP in May 2019, allege the company and its managers Timothy Rule and Gerald Karjala, “Did by criminal negligence fail, while under a legal duty to do so, to take reasonable steps to prevent bodily harm to Samuel Joseph Fitzpatrick.”
Charges were laid after a tenacious fight by Sam Fitzpatrick’s family, the families of other workers killed on the job in BC, the United Steelworkers and the BC Federation of Labour. The United Steelworkers waged a ten-year-long battle to have the Westray legislation passed following the 1992 Westray Mine explosion in Nova Scotia that killed 26 miners. An organized campaign to ensure the law was enforced, called “Stop the Killing, Enforce the Law,” began in 2004.
Peter Kiewit Sons ULC is a major multinational U.S.-based company involved in multiple projects in BC, including many for the BC government. Seven other workers have died on Kiewit worksites in BC in recent times, including one at the same Toba Inlet project where Sam was killed.
The U.S. company has declared its intention to plead not guilty despite the findings of the Worksafe BC investigation and subsequent fine. The criminal case will be precedent-setting as charges under the Westray law have been laid in only a small number of cases, usually with the company pleading guilty, and never against a multinational of the size, power and influence of Kiewit.