Attorneys defending contractors charged with the death of a 21-year-old labourer struck by equipment while working on the Jim Pattison Children’s Hospital in Saskatoon are raising questions as to why the general contractor, Graham Construction, is not facing similar legal action.
Last year Banff Constructors Ltd., a subcontractor for Graham on the project, was charged under OHS regulations with failing to make arrangements for the safe use, handling, and transport of trolleys resulting the death of Eric Ndayishimiye. Banff is also charged with failing to provide any necessary information, instruction, training and supervision resulting in the death of a worker.
Pilosio Canada Inc., an equipment supplier for Graham, has also been charged for the death under Saskatchewan’s Employment Act. The company is accused of failing to ensure equipment supplied to any owner, contractor, employer or worker is safe when used in accordance with the instructions provided by the supplier, resulting in the death of a worker.
According to court documents, the parties agree that Pilosio supplied the lift that struck Ndayishimiye who was an employee of Banff.
Currently the two companies are on trial for the charges. According to reporting by the CBC, during the trial Jonathan Frustaglio, the lawyer for Pilosio questioned why Graham was not facing similar charges, calling them a “missing link” and even prompting questions by Judge Brent Klause as to why the contractor wasn’t involved.
When contacted by the Journal of Commerce, Graham provided a written statement about the impact the death has had.
“Graham is deeply saddened by the death of young worker Eric Ndayishimiye,” reads the statement. “Graham places the highest value on safety, and the death of Eric resonates deeply within the Graham family. Without a doubt, this trial is a difficult time for the family.
The contractor went on to argue that if the Crown had evidence to charge them, it would have.
“With respect to Mr. Frustaglio’s comments of a ‘missing link’, the Crown would have carefully considered the issue of potential responsibility for the accident and concluded there was no reasonable prospect of conviction in the case of Graham, and quite sensibly has focused principally on Pilosio, as the manufacturer of a manifestly faulty product, a product we believe they have now removed from distribution in Canada,” reads the statement. “Once all of the evidence is heard and tested, including expert evidence, Graham is confident that the merits of the Crown’s decision not to proceed against Graham will be obvious.”
According to the province, Ndayishimiye was killed on July 24, 2016, after being struck by a steel construction lift, shutting down the site for weeks to facilitate an investigation. The trial, which started Aug. 12, is expected to last three weeks and will be decided by Judge Klause.