Industry reacts to Kiewit, Fitzpatrick decision: ‘There is no justice here'

When Sam Fitzpatrick’s father Brian died four years ago, Mike Pearson made a promise.

“I promised Brian I would keep on fighting to the last man standing,” he said.

Despite many setbacks and more than a decade of fighting, it’s a promise he intends to keep.

In 2009, Sam, 24, was struck and killed by a boulder on a Kiewit hydroelectric project near Toba Inlet, B.C. Falling rock hazards at the site were well documented and the day before Sam’s death a massive rock had fallen and damaged equipment. Investigators wrote hazards weren’t properly controlled and crews continued to work in dangerous areas. WorkSafeBC found the company failed to adequately train workers for the land clearing work. An appeal tribunal for fines levied against Kiewit determined they had “committed high risk violations with reckless disregard.”

After years of doggedly pursuing more answers, Pearson and Brian got the attention of officials, a criminal investigation was done and negligence charges were filed.

This month, just days before the matter was set to go to trial, prosecutors scrapped their case, stating issues with witnesses made a conviction unlikely.

The Crown explained a shakeup in witnesses and testimony changes prompted the stay of charges.

“The death of the main Crown expert, the nature and content of the replacement opinion, changes in the anticipated testimony of witnesses, and additional information received during pretrial interviews, have all led to the conclusion that the charge assessment standard can no longer be met, and the information must be stayed,” said Dan McLaughlin, communications counsel for the B.C. Ministry of the Attorney General.

Pearson said one can’t help but feel disillusioned with the justice system.

“The process was 10 steps ahead, nine steps back. Although the case looks dead in the water, I don’t really feel that I am done with it,” he explained. “At the beginning of our fight, I said that if we can’t get justice in Sam’s case we should just throw in the towel and disband the B.C. legal system. If we can’t get a conviction in something so heinous and tragic, then just declare B.C. to be a lawless frontier land and stand back.”

Kiewit has always maintained they disagreed with the charges and expressed relief the process was over, agreeing with the Crown’s decision.

“Today’s decision by the British Columbia Prosecution Service marks the conclusion of a long, difficult chapter for our company and our people – and also, in particular, the family and friends of Sam Fitzpatrick who lost his life in a tragic accident on the Plutonic Power Hydroelectric Project nearly 13 years ago,” said Bob Kula, vice-president corporate communications for Kiewit, in a statement to the Journal of Commerce. “For Kiewit, Sam has always been at the heart of this matter, and we continue to offer our sincerest condolences to his family, friends, and those who worked with him for their loss.”

The case has many others in the province frustrated, including the United Steelworkers (USW), who have long advocated for officials to utilize the Westray Act. The act was passed unanimously by Parliament in 2003, amending the Criminal Code to hold corporations criminally accountable for workplace death and injury. The USW spearheaded efforts to pass the bill following the 1992 Westray Mine explosion in Nova Scotia that killed 26 miners. It took 12 years.

“My first reaction is profound disappointment,” said Stephen Hunt, director for USW in Western Canada. “I testified at the Westray inquiry after the mine explosion and the law was born out of that. It seems not to be working in this province.”

Hunt recalled when Fitzpatrick’s father Brian, who died in 2017, came to the Steelworkers for help after finding their campaign to use the Westray Act to stop workplace deaths. The union worked with Brian to pressure officials to investigate the incident and file charges.

“He passed away with the thought that there would be justice,” said Hunt. “I remember when the Crown announced they were proceeding, and he was elated.”

Hunt believes that co-ordination between the Crown, WorkSafeBC and police is poor and the province’s own reports have called for better training on criminal workplace incident investigations and prosecutions. Cases like

this do take time and resources, he added.

“It took Brian years to find the details and press the police and crown. What’s wrong with that picture where the father of the deceased was to do the legwork?”

The case also got the attention of Port Coquitlam Mayor Brad West, who tweeted out his reaction: “Multi-nationals can kill working class people with impunity and all the systems designed to deliver justice instead deliver an escape from accountability. I knew the Fitzpatrick family and today is a sad day.”

The BC Building Trades, which has championed the case as well, simply stated: “There is no justice here.” Kula, however, stated Kiewit was gratified prosecutors concluded the evidence did not support the charges.

“It has always been our company’s belief and that of our experts that the rockfall that took Sam’s life was a tragic accident and was not caused by the actions of any personnel working on the site.”

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