BURST
An excavating company in charge of a Burnaby work site where a pipelayer was killed when a retaining wall collapsed was ordered to pay a total of $575,000 in fines and victim surcharges after being found guilty of criminal negligence.
J. Cote and Son Excavating of Langley was also ordered to pay $6,246.25 directly to pipelayer Thomas Richer, who was injured in the workplace accident in October 2012.
His co-worker, Jeff Caron, 25, was killed when he was pinned by the collapsed wall.
Foreman David John Green was tried for manslaughter and faced a possible jail sentence in a case that was being closely watched by workplace safety professionals for its focus on a 2004 Canadian law called the Westray Law.
It targets all levels of an organization, from job site supervisors to corporate executives, for negligence for work accidents.
But Green was found not guilty of manslaughter and of a separate individual criminal negligence charge in December after a lengthy trial in B.C. Supreme Court in Vancouver.
Justice Michael Brundrett instead found Green and company owner James (Jamie) Cote collectively guilty of negligence in Caron’s death and the injuries to Richer, who was in also in the trench that day during work for a Burnaby city sewer project.
The fines were delivered during sentencing on Wednesday.
On the count of criminal negligence causing death, the company was fined $400,000 plus payment of a $60,000 victim surcharge, according to a court document. On the second count of criminal negligence causing bodily harm, the company was fined $100,000 and $15,000 for a victim surcharge, it said.
Prosecutor Louisa Winn had based Green’s manslaughter and the company’s criminal negligence charges on evidence that included Richer’s testimony that alleged safety violations were ignored by Green, including a crack in the wall of the trench, and that Green ran from the scene after the collapse.
Brundrett rejected both those statements and accepted only Richer’s testimony that was corroborated by other witnesses, including that the company failed to hold the regular staff safety meetings that are the norm in the industry.
And he found the company falsely relied on a safety certificate that had been issued earlier in October 2012 that wasn’t specific to the excavation project.
The company “bears a responsibility for the collective failure of its senior officers to foresee and prevent the collapse of the retaining wall,” he said, naming “primarily Mr. Green” but also Jamie Cote and a third senior officer.
Omissions by its senior officers include a “failure to adopt a more proactive approach to safety, to appreciate the stability or unknown instability of the retaining wall, to better educate its workers, to distribute an up-to-date safety manual, to implement effective safety means” and to accurately interpret the Oct. 2 certificate.
“That failure amounts to a collectively inadequate response to trench safety, attributable to J. Cote,” he said.
“I find beyond a reasonable doubt that this conduct collectively represents a substantial departure from the expected norm and is properly characterized as a reckless disregard for the lives and safety of the workers,” he said.
Before pronouncing Green not guilty of his individual charges because, as foreman, he lacked the authority to create company policy, Brundrett said, “Mr. Green’s role was skill-specific and more limited than that of a superintendent or an owner in that he did not have the ability … to determine the company’s overall approach to safety.”
The Westray Law was passed after a deadly 1992 explosion in the Westray coal mine in Nova Scotia.
In that case, employees, the union and government inspectors raised safety concerns, but no one was held accountable for the deaths of 26 miners, despite a police investigation and a public inquiry.
The Burnaby was only the third time the law had been used in a prosecution in B.C., according to Canadian Occupational Safety’s online magazine.