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B.C. Westray charges follow years of pressure from union, family

Russell Hixson
B.C. Westray charges follow years of pressure from union, family
PHOTO COURTESY OF MIKE PEARSON - Arlen Fitzpatrick (left) poses next to his brother Samuel Fitzpatrick on a jobsite. Samuel was killed by a falling rock while working on a hydroelectric project at Toba Inlet, B.C. Peter Kiewit Sons, the company in charge of the site, and several of its former employees are now facing criminal negligence charges for the death.

After years of urging from family members, friends and unions, Peter Kiewit Sons ULC, an international construction firm, and two of its former supervisors will face criminal charges related to a 2009 worker death on a construction site in B.C.

The charges laid this month stem from the death of Samuel Fitzpatrick who was working as a rock scaler on a run-of-the-river project construction site near Powell River, B.C. in 2009.

Mike Pearson, a friend of the Fitzpatrick family, said that Brian Fitzpatrick, Samuel’s father fought to hold Kiewit accountable by urging the RCMP to investigate the case. Brian, who Pearson called “Fitz”, passed away in 2017.

“Brian Fitzpatrick was one of my best friends,” said Pearson. “I miss him every day.”

Pearson explained that he started helping Brian in his efforts after Kiewit began appealing fines imposed by WorkSafeBC in 2011. As the appeal process went on, Brian also persuaded the RCMP to begin investigating the death.

“I admire the professionalism that the RCMP gave to Fitz as they worked their way through a complex, ground-breaking case,” Pearson said. “I believe that Fitz’s charm and drive to get to the truth was a motivating factor.”

Pearson also praised the prosecutor’s office, saying that they were professional and cautious while they worked the file.

“Sam’s death has affected his co-workers, friends and family to this day,” Pearson said. “The battle for justice, to find the truth will continue for as long as it takes.”

The charges were also applauded by the United Steelworkers (USW) who have been pressure officials for years to investigate the Fitzpatrick case and many others.

“It’s bittersweet,” said Steve Hunt, director of USW District 3. “Bitter because people have died, but sweet because there is finally some semblance of justice.”

Despite he or his son not being members, Brian approached the union after becoming frustrated in his search for justice.

“When Brian came to my office he was desperate for someone to listen to him,” said Hunt.

The union made a video of Brian telling his story and included it in its “Stop the Killing, Enforce the Law” campaign.

“He talked to everyone who would listen, to try and make them understand that Sam was killed by corporate negligence and deliberate actions and reckless decisions that put workers at risk, with no one held accountable,” said Hunt. “Today’s announcement of charges brings justice one step closer.”

The national campaign is focused on enforcing the Westray Law, passed unanimously by Parliament in 2003, amending the Criminal Code and aimed at holding corporations criminally accountable for workplace death and injury.

“I think it’s important for the Westray Law to be enforced simply because if you are going to have a law, it should be enforced,” said Brian, in his video for the campaign. “People don’t want to see people killed, and children without fathers and mothers and all that flows from that, simply because someone wanted to make a profit.”

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.

“When Westray blew up we made a commitment to those that lost their lives and all the survivors,” said Hunt. “Where there was negligence, it should be investigated like a crime … When the law passed unanimously, we celebrated. We thought we had done what we said we would do, but in the years since, it has not been enforced very much.”

Hunt said he knows of only one other time the Westray Bill had been used in B.C.

Before the charges, Kiewit faced fines that were reduced on appeal.

The Fitzpatrick death incident was investigated by WorkSafeBC in 2011, resulting in a $250,000 fine for the firm, the highest penalty imposed that year. Investigators determined that Fitzpatrick was fatally struck by a rock estimated to be over 1.5 metres in diameter after the company had allowed work to proceed without clearing loose material uphill.

Prior to the injury, supervisors had frequently documented loose rock hazards during their daily crew meetings, and the day before Fitzpatrick’s death a massive rock had fallen and damaged equipment. Investigators wrote that hazards weren’t properly controlled and crews continued to work in dangerous areas.

Despite unstable material being identified in risk assessment, WorkSafeBC found that the company failed to adequately train workers for the land clearing work, the investigation concluded.

The fine was successfully appealed and reduced to less than $100,000. The appeal tribunal ruled it could not determine if company decisions directly led to the boulder striking the worker.

Despite this, the tribunal did note that the company had “committed high risk violations with reckless disregard.”

“In the Fitzpatrick case it was painfully obvious to us that somebody failed to protect Sam and others,” said Hunt. “Someone has to answer the question: ‘why? Why would you do that.’ We think that rings the bell on criminality. Someone put these workers at risk.”

Kiewit representatives did not respond to requests by the Journal for comment but have told other media it disagrees with the charges and will defend itself in court.

The first appearance for Kiewit in the case will take place July 17 in Vancouver provincial court.

Beyond B.C., the charges follow a recent trend of enforcing the Westray Bill. In the case of the Metron swing stage collapse in Ontario, a supervisor was sentenced to 3.5 years in prison. Last September excavation contractor Sylvain Fournier was sentenced to 18 months in jail, plus two years of probation, in Quebec after being found guilty of manslaughter in a 2012 trench collapse which killed an employee.

“It’s been 15 years since the Westray Law — C-45 — was passed and we’re finally now getting prison terms in these cases,” said Toronto Lawyer Norm Keith who was previously interviewed by the Daily Commercial News.

“I guess it was a decade for people to get used to the idea and then in the last five years it’s started to be applied.”

BELOW: Brian Fitzpatrick speaks about his son, Sam Fitzpatrick, for a United Steelworkers campaign to pressure jurisdictions to enforce the Westray Act. Sam was killed on a jobsite in 2009 by a falling boulder. Brian spent years urging officials to file charges for the incident. Brian died in 2017.

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