The Death of Sam Fitzpatrick

Today’s blog includes an excerpt from an excellent editorial by Tom Sandborn about the death of Sam Fitzpatrick, a young worker who was killed while scaling rock in Toba Inlet in 2009.

Tom Sandborn has been reporting on the Fitzpatrick case and the company involved, Peter Kiewit Sons ULC (“Kiewit”), for years. This excerpt includes his reporting on the Crown’s recent decision to stay criminal charges against Kiewit and two individuals. It also includes helpful links to his earlier investigative reporting. Both are important.

To introduce his work, I provide a bit of compensation context and commentary. I also endorse his conclusion – repeated here for easy access. 

If you agree that the company and managers who presided over Sam Fitzpatrick’s know you want him to exercise his statutory power to reverse the prosecutor’s decision to stay charges. Let’s give Sam Fitzpatrick (and all the other workers endangered and killed by corporate negligence) a day in court. If you support this call for accountability, please email the AG and let him know here: AG.Minister@gov.bc.ca

Background 

On February 22, 2009, Sam Fitzpatrick was struck and killed by a falling boulder while he and his brother Arlen were scaling rock on the steep terrain of Toba Inlet.

In the world of heavy construction, “scaling” means the breaking up and removing objects (boulders, trees, debris) on a slope so the slope is stabilized and ready for a construction project. Typically, excavators clear the larger objects and workers hand-drill the remaining rock on a slope. Rock scaling is considered dangerous work as it must be done while machines are moving rock and other debris, often at locations near or above them, all while they hand-drill on steep slopes. There are many OH & S Regulations which apply to worksites where rock scaling is required. 

On the day before Sam was killed, there was a “rock fall” incident when an excavator was clearing out debris and casting the material down the slope. One of the rocks took an unexpected path and struck a vehicle on a lower level, causing extensive damage. 

Although the company amended its work plan to state that “no work would be done below until the top section had been finished”, excavators began working up-slope from the rock scalers the next day. Suddenly, a large rock came crashing down the hill. Sam did not hear the shouted warnings due to his hearing protection and he was struck, dying instantly in front of his brother.

The Board conducted an extensive investigation of this incident and the earlier “rock fall” incident and issued four violation orders against Kiewit. It also levied a presidential penalty of $250,000 based on the two factors below. Kiewit appealed the quantum of this penalty.

Penalty factor #1: Did Kiewit commit a high-risk violation willfully or with reckless disregard?

All of the decision-makers – the Board, the Review Division and WCAT – found that Kiewit’s safety violations had created a high risk of injury or death on the worksite. This was not disputed by Kiewit.

The Review Division (RD) and WCAT also found that these high-risk violations had been done with “reckless disregard”. The RD stated that” the risk and likelihood of an accident was glaring and obvious.” 

Penalty factor #2: Did Kiewit’s high-risk violations cause Sam Fitzpatrick’s death?

The second factor in a presidential penalty is causation.

Sam Fitzpatrick’s death came in 2009, three years before the mill explosions in Babine and Lakeland and before the Crown’s statement on failures in WorkSafe investigations (2014), the Macatee Review (2014), the Coroner’s inquest into the mill explosions & recommendations (2015), the Helps Review (2019) and various amendments to the Workers Compensation Act seeking to address systemic problems in WorkSafe’s serious and fatal investigations. This goes some way to explain why, in 2009, the Board released the Kiewit worksite and permitted the company to remove the rock that killed Sam Fitzpatrick. The rock was never seen again. 

On appeal, the company argued that no link had been, or could be, established between the company’s actions (a failure to scale properly) and the falling rock. Two divergent views emerged. 

The RD said that “regardless of what actually caused the rock to move” the employer’s failures and violations were a material cause of Sam’s death. This is because: 

Had the slope been adequately scaled and the ground all the way to the top properly assessed…it is unlikely that the rock that struck the worker would have fallen. That is because the rock that struck the young worker was very large…it is unlikely that a proper assessment of the site would have missed it.

WCAT did not agree. 

Because we are unable to find on a balance of probabilities where the rock came from or whether it would have been controlled by adequate scaling, we cannot conclude that the worker’s death resulted from that safety violation.

The result of the WCAT decision was that the presidential penalty of $250,000 was set aside and the case was sent back to the Board to assess a lower penalty.

Comments

This background helps us understand the challenges involved in the criminal proceedings. The issues and evidentiary gaps are much the same, only older. 

But equally, it illuminates the need for the “Westray” provisions in the Criminal Code to actually be used. The Westray coal mine disaster killed 26 miners in an underground explosion in May, 1992. In 2003, amendments were made to section 219-221 and 22.1 of the Criminal Code, to amend the definition of criminal negligence and specify how an organization or company can be party to an offence. 

Before the Fitzpatrick case, there were no WorkSafeBC related criminal negligence cases where charges were laid by Crown Counsel. In 2004, WorkSafe referred a case to Crown Counsel to consider charges in the death of a young mill worker in the Weyerhaeuser plant in New Westminster. The Crown decided not to lay charges so the United Steelworkers pursued a private prosecution. The Crown then took over the case and stayed the charges. 

I have endorsed the call to reverse the Crown’s decision to stay the criminal charges in this case. I also endorse the view, expressed below, that a criminal trial could afford an opportunity to correct the flaws which have dogged this case since 2009.

Who Killed Sam Fitzpatrick?

The trial meant to determine responsibility for a horrific workplace death was suddenly stayed. BC AG Eby can and should recommence it.

Tom Sandborn 20 Sep 2021 | TheTyee.ca

Tom Sandborn, who covered labour for The Tyee, lives and writes on unceded Indigenous territory in Vancouver. He welcomes your feedback and story tips by email here.

The case “R. v. Peter Kiewit Sons ULC (Kiewit), Timothy Rule and Gerald Karjala,” might have changed labour history in Canada. But just before it was slated to open in a Vancouver courtroom, the BC Prosecution Service, or BCPS, announced a surprise decision to stay the proceedings.

The news stunned many observers who have followed this tragic case for more than a decade since a boulder crushed the life out of Sam Fitzpatrick in 2009 at a Toba Inlet worksite operated by the Kiewit construction firm.

Despite a dangerous rock fall and near miss the day before Fitzpatrick was killed, Kiewit supervisors ordered Sam and his brother Arlen to work downslope from heavy equipment again that day. (Original Tyee coverage of this controversial case is linked here: “Big Liberal Donor’s Rocky Safety Record” and a follow-up here: “Sam Fitzpatrick Died on the Job. Now Comes the Groundbreaking Criminal Trial“.

Who cares about another workplace death at an obscure construction site? After all, Canada counts some 1,000 work-related deaths each year, most of which go unnoticed by the public. This case obviously was of profound interest to Fitzpatrick’s family. It mattered to family friends like construction worker Mike Pearson, who had advocated for criminal charges against Kiewit. It consumed the Fitzpatrick brothers’ father Brian, who tirelessly pressed for justice until he died in 2017.

The case also is of compelling interest to United Steelworkers director Steve Hunt, who heads up the union’s Stop the Killing, Enforce the Law campaign. Although the Fitzpatricks were not members of USW, the union has played a key role in advocating for accountability in Sam’s death. Said Hunt: “We are extremely disappointed in the decision from the BC Prosecution Service not to prosecute the case. Sam Fitzpatrick died more than a decade ago and criminal charges were only laid in 2019 after a long campaign for accountability led by Fitzpatrick’s friends, family and our union… Sam and the Fitzpatrick family deserved justice.”

The case certainly interests me deeply. I have covered it for nearly a decade now, both on The Tyee and in a book about the Westray Mine disaster and other workplace death issues. I have come to know and respect Brian Fitzpatrick and Mike Pearson and to share their sorrow about Sam’s death.

I am among the many who think the stay, announced Aug. 31, should be reversed. I urge B.C.’s Attorney General David Eby to recommence the proceedings as he is empowered to do by Section 579 (2) of Canada’s Criminal Code.

Among the academics who have been watching the case closely is Steve Bittle at the University of Ottawa. He shares in the bitter sense of being blindsided. Bittle, author of the landmark study of workplace deaths in Canada entitled Still Dying for a Living, told me, “The Crown’s decision in this case is both shocking and disappointing. For Sam Fitzpatrick’s family and loved ones, particularly his late parents who struggled so hard to see justice for their son’s death, the decision not to proceed is surely beyond heartbreaking. It sends the message that the justice system is incapable or unwilling to hold powerful corporations to account for injuring and killing workers.”

That aptly describes, I think, why B.C.’s attorney general should revive the case. If the cancelled trial had proceeded, it would have been the first time that the Westray Act, which in theory provides for criminal charges against a company that takes unnecessary risks with the lives and safety of workers, was used against a major corporation. The case could have signalled a long-deferred new attitude toward workplace deaths and management negligence in Canada.

Now it falls to Eby to create important such new precedents by recommencing the trial…..

The power to recommence the stayed charges lies in the hands of this province’s attorney general. If you agree that the company and managers who presided over Sam Fitzpatrick’s needless death should, at long last, be accountable in court, please let AG Eby know you want him to exercise his statutory power to reverse the prosecutor’s decision to stay charges. Let’s give Sam Fitzpatrick (and all the other workers endangered and killed by corporate negligence) a day in court. If you support this call for accountability, please email the AG and let him know here: AG.Minister@gov.bc.ca