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Sam Fitzpatrick Died on the Job. Now Comes the Groundbreaking Criminal Trial

Why heavy charges facing a big contractor and two managers are historic.

Tom Sandborn 2 Sep 2019TheTyee.ca

Former Tyee labour reporter Tom Sandborn lives and writes on unceded Indigenous territory in Vancouver. He welcomes your feedback and story tips at [email protected].

If you’d like to watch history made, attend Courtroom 102 at 222 Main Street in Vancouver on Sept. 6. That’s the setting for an unprecedented case against a giant international construction firm, Peter Kiewit Sons ULC, and two high level employees.

The charges 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.”

The fact those criminal charges were laid in May could result in a new standard for how corporations are treated if responsible for their worker’s injury or death.

On Feb. 22, 2009, Sam Fitzpatrick was struck and killed by a boulder while working for Kiewit on the Toba Inlet private power project, near Powell River. The case turns in part on whether the massive rock was dislodged by men, using heavy equipment, supervised by company foremen. There is no doubt the rock suddenly rolled down the slope and struck Sam while he was jackhammering a different boulder. Working alongside Sam was his brother Arlen. He watched Sam die.

The Tyee has published a number of articles about the case including this overview and this coverage of Kiewit’s record as a big operator in B.C. and beyond, and a major donor to the BC Liberal Party.

Bob Kula, a Kiewit spokesperson, told me just after charges were laid at the end of May 2019 that the firm, which had not yet filed a response in court, disagrees with the “justification and timing” of the charges. Kiewit lawyers, he wrote, “will defend our company in this matter.”

Fitzpatrick’s family members, and the United Steelworkers union which also has been involved in pursuing this matter, welcomed the charges.

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Rock scalers Arlen Fitzpatrick, left, and brother Sam were working together when a boulder dislodged where heavy equipment was operating, tumbling towards Sam and killing him. Photo by Mike Pearson.

Steve Bittle, a University of Ottawa criminologist says the indictment marks a new level of enforcement of the Westray Act, which since 2004 has made it possible to charge companies with criminal negligence. (I wrote a book about the act and the labour movement’s long fight for worker safety. Hell’s History is excerpted in The Tyee here.)

It took a decade of lobbying by the United Steelworkers and other allies to get the Westray Act passed in the first place. After Sam Fitzpatrick was killed, it took 10 years of ongoing efforts by family, friends and the labour movement to bring Westray to bear on his case.  

Sam Fitzpatrick was working as a rock scaler at Toba Inlet when he was crushed. It was the second time in two days that a boulder had come down the slope into the area where the rock scalers were working.

The original WorkSafeBC investigation was critical of Peter Kiewit Sons, saying “deficient safety planning and supervision” and “heedless” and “wanton” disregard of safety contributed to Fitzpatrick’s death.

The firm was originally fined a quarter of a million dollars. After Kiewit appealed in 2013, the appeal tribunal reduced the fine to less than $100,000 and ruled it could not be certain that company actions caused the boulder to roll.

The ruling, however, was no exoneration. It said that Peter Kiewit Sons had “committed high risk violations with reckless disregard” in connection with the death. Among those who’d complained about risky practices on the site was Sam Fitzpatrick the day before he died.

Under Westray, the alleged offenses by Karjala and Rule carry a maximum penalty of life in prison. If found guilty of the same offense, the company could face penalties including large fines and stringent probation terms.

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Where Sam Fitzpatrick was killed. Photo of site made by WorkSafeBC as part of its investigation.

Criminologist Bittle told me by email on June 1, 2019, that the Kiewit case was very important and in some ways unique.

“In 2017 Detour Gold pled guilty to criminal negligence causing death for its role in the death of a worker who died after being exposed to sodium cyanide during repair operations. The company was ordered to pay a $1.4-million fine. This case was certainly significant in that it was a large company and a relatively significant fine. However, I think the Kiewit case has the potential to be of even greater significance when you consider it implicates a large and well-known multinational corporation that has been involved in a number of major infrastructure projects, particularly in B.C.

“What’s more, unlike the Detour case where the company pled guilty, it would appear at this point that Kiewit intends to contest the charges in court. If that happens, then the case could also be the most significant test for the Westray law — to establish whether the law is fit for purpose.

“To date, we’ve either seen cases involving guilty pleas (like Detour or Metron), or convictions involving small companies where it is relatively easy for the Crown to trace the company’s chain of command and establish negligence accordingly. As such, we really haven’t seen the Westray law’s provisions tested in court. The Kiewit case is also significant in that, perhaps, it signals improvements in the Westray law’s enforcement.”

Sam Fitzpatrick’s mother, Christine Tamburri, told the CBC in May that she welcomed news about the charges in her son’s death. Sam’s brother Arlen, around the same time, told me, “It was hard to hear, but it was good news.”

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United Steelworkers District 3 director Stephen Hunt: ‘There are far too many examples of workers dying and employers getting off the hook.’

Stephen Hunt of the United Steelworkers said, “Charges such as this one point to the need for our Stop the Killing, Enforce the Law campaign to continue.”

The law referred to in the name of the campaign is the Westray Act. Hunt and his organization have long pushed to see Westray given formidable teeth.

“Our union’s first priority,” Hunt has said, “is to ensure the health and safety of all workers, but if tragedy strikes we also want to ensure that employers are held accountable. There are far too many examples of workers dying and employers getting off the hook.”

As one who has covered this case from the beginning, allow me to drop my reporter’s voice here for a moment and add a statement of my own. I’ve seen the unflinching loyalty and love that Brian Fitzpatrick, who died in 2017, not long after hearing the RCMP had recommended Westray charges in Sam’s case, showed his son by pursuing justice for his death.

I have observed the personal decency and commitment of friends like fellow construction worker Mike Pearson, who campaigned tirelessly with Brian to insist on charges being laid. I have chronicled the collective strength of workers through the United Steelworkers and their Stop the Killing campaign.

And I have learned that the word solidarity can be more than a slogan. I have concluded it is possible to stand up and fight, and sometimes to win.

Now, this week, the drama enters a new chapter in Courtroom 102. It remains to be seen what the court rules. Whatever the outcome, the fact that charges were laid at all signals a victory for working people who put their lives on the line while trusting their profiting employers to keep them safe from harm.  [Tyee]

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