Historic Criminal Charges Laid Against MultinationalFirm in Death of BC Worker
By Tom Sandborn
Criminal charges laid in a BC court this May
could well represent a historic change in how corporations are treated when
they kill their workers. And the existence of these charges, like the existence
of the law that makes them possible, is a tribute to what can be accomplished
when working people stand together. It took ten years of ongoing efforts by
family, friends and the labour movement, but the death of Sam Fitzpatrick is
closer to justice and accountability than ever before.
“Criminal negligence causing death.” That’s the charge laid May 31 against Peter Kiewit Sons ULC, a large US-based firm with a long history in BC, and against two of its former employees. The charges, not yet tested in court, allege that the company and the two then management staff were negligent in the death of a young construction worker, Sam Fitzpatrick, at a Kiewit worksite in BC in 2009.
Bob Kula, a Kiewit spokesman, told me that the firm, which had not yet filed a response in court, disagrees with the “justification and timing” of the charges. Family members and a union that has been involved in pursuing this matter welcome the charges, and Steve Bittle, a University of Ottawa labour expert says the indictment could mark a historic change in the enforcement of the Westray Act (which makes it possible to charge companies with criminal negligence.)
An information filed May 31 in the court registry of the Provincial Court of BC in Vancouver says of the company and two individuals, Timothy Rule and Gerald Karjala, that they “… on or about the 22d day of February, 2009, at or near Powell River, in the Province of British Columbia, 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, contrary to section 220(b) of the Criminal Code.”
Fitzpatrick was working as a rock scaler with his brother Arlen at the Kiewit site when, according to a 2011 Work Safe BC investigation, he was killed by a boulder rolling downslope from an area where Kiewit-controlled heavy equipment was operating. This was the second time in two days that a boulder had come down the slope into the area where the rock scalers were working. Arlen witnessed his brother’s death. (Full disclosure. I have written in various publications about the Fitzpatrick death now for years, and his case is featured in a book I wrote for the United Steelworkers about the Westray Act. (https://www.usw.ca/act/activism/health-safety-and-environment/resources/hells-history)
The original Worksafe BC investigation was critical of Peter Kiewit Sons, saying "deficient safety planning and supervision" and "heedless… wanton" disregard of safety contributed to Sam Fitzpatrick’s death. The firm was originally fined a quarter of a million dollars, but it appealed and in 2013, the appeal tribunal reduced the fine to less than a hundred thousand dollars and ruled it could not be certain that company actions caused the boulder to roll down the slope.
However, the ruling was not a total exoneration. It said that Peter Kiewit Sons had “…committed high risk violations with reckless disregard,” in connection with the death.
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, stringent probation terms and the stigma of being criminally convicted.
Kiewit Sons spokesman Bob Kula told me on May 31 by email that his firm “will defend our company in this matter.”
U of Ottawa expert Steve Bittle said by email on June 1 that the Kiewit case was very important and in some ways unique. He wrote:
"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 multi-national corporation that has been involved in a number of major infrastructure projects, particularly in BC. 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.”
Bittle pointed out that the Westray Act, under which the charges against Kiewit have been laid, has been notoriously under-enforced since trade union campaigns headed up by the United Steel Workers let to its adoption in 2004.
“Let's keep in mind that there's only been approximately 6 guilty pleas/convictions under the Westray law since it was enacted more than fifteen years ago,” Bittle wrote. “And that's despite the fact that approximately 1,000 workers die each year from a work-related incident or illness.”
Sam Fitzpatrick’s mother, Christine Tamburri told the CBC that she welcomed news about the charges in her son’s death. Sam’s brother Arlen spoke to me on May 31. “It was hard to hear, but it was good news,” he said.
"Charges such as this one point to the need for our Stop the Killing, Enforce the Law campaign to continue," said Steve Hunt of the United Steelworkers, a union that supported efforts by Fitzpatrick’s father Brian to see criminal charges laid.
“You can’t fight city hall,” we are often told, and fighting the entrenched power of big business can be even harder. But the clear lesson of Sam Fitzpatrick’s death and the eventual decision by Crown Counsel to lay criminal charges against his employer and the on site managers is clear. With the kind of unflinching loyalty and love that Brian Fitzpatrick showed his son, and the personal decency and solidarity of friends like fellow construction worker Mike Pearson, who campaigned tirelessly with Brian to insist on charges being laid, and with the collective strength of workers through the United Steelworkers and their Stop the Killing campaign, (https://www.stopthekilling.ca/) it is possible to stand up and fight, and sometimes to win. These are important lessons.
It remains to be seen what the courts rule on the charges against Keiwit and
Keiwit managers, but it has been a victory for solidarity that they have been
laid at all. Everyone who cares about justice in Canada should pay close
attention to the trial as it unfolds. (A first hearing is scheduled for mid
Tom Sandborn lives and writes on unceded indigenous territory in Vancouver. He welcomes your feedback and story tips at email@example.com