Saskatchewan court finds at-fault rulings in two construction deaths

Alberta company Banff Constructors Ltd. has been found liable under the Saskatchewan Employment Act on charges that relate to the workplace death of 21-year-old Eric Ndayishimiye, which occurred in 2016. The company will appear in court for sentencing on May 21.

Ndayishimiye, who had been on the job less than half a year, was working on the ground floor stripping nails at the Jim Pattison Children’s Hospital construction site in Saskatoon when a 560-kilogram metal table cart fell on him.

It is the second Saskatchewan judgment faulting construction companies for lack of safeguards that resulted in fatalities, in separate incidents, rendered by the provincial court in less than a month.

BLS Asphalt, a family-owned business based in Regina, has been found responsible for the death of 33-year-old Troy Lucyk, also new on the job with only six months experience. He became entangled in the tail pulley of a conveyor system while working at the company‘s gravel crusher site in 2017. BLS Asphalt, found guilty on two of three charges brought under the act, will also be sentenced some time in May.

Banff Constructors, a subcontractor on the project, had earlier pleaded not guilty to charges of failing to make arrangements for the use, handling and transport of trolleys in a manner that protects the health and safety of workers and, secondly, failing to provide any necessary information, instruction, training and supervision resulting in the death of a worker.

According to testimony, the cart arrived at the site minus two interlocking pins needed to hold it together and two pins were improvised at the site from threaded rods. The cart, which is a table with wheels, is used to form and dry slabs of concrete and requires two individuals to handle it. Only one person was handling it at the time and an employee testified the pins had been removed shortly before to allow it to be moved to a narrower space when it collapsed.

Ndayishimiye was rushed to hospital but was pronounced dead from multiple blunt traumas to the head, throat and chest.

In a long court case that started in 2019, Banff Constructors brought forward testimony from an expert witness that indicated the cart was poorly designed, which the supplier refuted.

Saskatchewan Provincial Court Judge Brent Klause said this was not a case of the employee being in the wrong place at the wrong time but of the company failing to protect its employee from harm.

He said the company “was willing to spend money on an expert to shift the blame afterward but was not willing to spend the time and money to get the correct parts and safety manuals for the equipment in the first place.”

Pilosio Canada Inc., the cart supplier, was also charged under the Saskatchewan Employment Act for failing to ensure equipment supplied to any new owner, contractor, employer or worker is safe when used in accordance with supplier instructions. Pilosio‘s legal counsel argued the cart had not been used in accordance with its instructions, the company provided training, and the cart had been modified without consent.

Judge Klause dismissed the charge against Pilosio.

He remarked on delays in resolving the cases. The trial involving the two companies began in August 2019 but had numerous adjournments and what Klause called multiple “time-consuming applications” which he said were “unnecessary” but also acknowledged that COVID-19 played a role.

In the BLS Asphalt judgment, which was handed down March 30, BLS Asphalt was found liable for the death of Lucyk. He was working as a loader operator at the crusher gravel pit near Ceylon, Sask. when a chute became clogged with rock and sand. Lucyk went to assist his supervisor in removing the clog by jumping up onto an uncovered frame over a moving tail pulley on a conveyor system. Lucyk slipped, falling into the tail pulley with his leg ending up wrapped around the drum roller. He died from massive blood loss as crew members attempted a rescue.

Police attending the scene and testifying at the trial, said Lucyk’s leg had been pulled in all the way up to his hip and the leg appeared to be dislocated from the hip socket. The fire department attended the scene and needed to break down the mechanism to free the leg. 

The crown claimed three violations of regulations under the Saskatchewan Employment Act. The first was a failure to provide any information, instruction, training and supervision that is necessary to protect the health and safety of workers at work as required. While Lucyk had been given safety training at the crusher site, Provincial Court Judge Michelle Brass said there was no training on how to clear the chute when it became clogged.

“Unclogging the chute was not uncommon and was a task that had to be done repeatedly.  Depending on the conditions, the chute may need to be unclogged daily, up to three or four times a shift, or weekly,” the judgment said. The task usually fell to a grounds worker, but there was no one on duty so the other workers took on the role. There were no written instructions on how to clear the chute.

The second charge related to having a stopping device in clear view and easy reach. The judge found the crown failed to prove its charge as the tower operator at his post, as the supervising entity, had a stopping device that was in direct view and readily available as per the requirement of the legislation. The court testimony found it was common practice to leave the conveyor system running while the chute was being cleared.

The last charge related to a failure to provide safety guarding on the tail pulley. Judge Brass ruled on the third charge, the court found BLS failed, on a balance of probabilities, to show that it exercised due diligence because of three main factors.

“First, other tail pulleys on site had safeguards. Second, the tail pulley at issue was manufactured with anchoring points to bolt a safeguard in place. Third, BLS was able to install a cover on the tail pulley at issue without new or complex resources to do so,” she ruled.

These court decisions faulting two members of the construction industry come as the Saskatchewan Workers’ Compensation Board moves into its last year of a 2019-2021 strategy aimed at reducing workplace deaths. In 2018, it released data that showed a growing concern with workplace deaths, which were averaging 37 fatalities a year over a 15–year period. Latest figures record 34 deaths for 2020, with approximately half related to occupational diseases. Two people died from being caught in equipment, two died from being struck by equipment.