Unprecedented criminal charges laid in B.C. worker's death

Criminal negligence chargeshave been filedin the 2009 death of Sam Fitzpatrick on a B.C. worksite, charges that are unprecedented in Canada for a major multinational corporation.

Peter Kiewit Sons Co. and two former managers,Timothy Rule and Gerald Karjala, are all named in an indictment sworn Friday morning and provided to CBC News. Each is charged with one count of criminal negligence causing death.

In an email, Fitzpatrick's mother, Christine Tamburri, told CBC she was pleased atthe news.

Fitzpatrick was 24 years old when he was crushed by a falling boulder on a Kiewit hydroelectric construction project on the Central Coast on Feb. 22, 2009.His younger brother, Arlen, was watching when it happened.

Fitzpatrick's family and friends, along with the United Steelworkers union,have spent the last decade fighting for accountability in the tragedy.

Family friend Mike Pearson describednews of charges as bittersweetbut very welcome.

"It's an example of the system working. The justice system has been heavily criticized in the last little while, and this is an example, so far, of it working the way it's supposed to and people taking a stand and being brave and standing up for what's right," Pearson told CBC.

Kiewit's vice-president of corporate communication, Bob Kula,wrote in an email that the company is reviewing the chargebut will "vigorously defend" itselfin court.

"We disagree with the justification for and timing of this charge regarding the tragic death of Sam Fitzpatrick," Kula wrote. "This charge against Kiewit comes more than five years after WorkSafeBC and the Workers' Compensation Appeal Tribunal determined that Kiewit did not willfully contribute to or cause this fatality."

Landmarkuse of workplace safety law

The charges are unprecedented in Canada for such a large company, according to an expert on corporate criminal liability.

Steven Bittle, an associate professor of criminology at the University of Ottawa, described this as the most significant application of the so-called Westray law, introduced in 2004.

The law was prompted by the 1992 Westray coal mining disaster that killed 26 miners in Nova Scotia, after charges against Curragh Resources and the mine managers were stayed. The legislation resulted in Criminal Code amendmentsthat allowed prosecution of corporations and their directors in workplace incidents.

"To my knowledge, there have not been charges brought against a similarly positioned corporation in Canada," he told CBC, referring to Kiewit's size and influence in this country.

Kiewitis one of the biggest construction companies in North America. It has a long history of partnering on major B.C. infrastructure projects, including the new Port Mann bridge, upgrades to the Sea-to-Sky Highway and the Trans Mountain pipeline expansion project.

In the 15 years since the Westray law was implemented, there have only been a handful of convictions, and Bittle said he was pleasantly surprised to hear of the latest charges in B.C.

"It really does signal that the work that's been done over the years to draw attention to dangerous workplaces and the risks that are taken with workers' lives, that there is the prospect of calling these things for what they are, dealing with them as criminal offences and not just health and safety violations," he said.

'Reckless disregard' for safety

Fitzpatrick was working as a rock scaleron the project atToba Inlet when he was struck in the head by a massive falling rock, estimated at up to 1.8 metres in diameter.

His brother Arlen was sitting nearby when it happened and shouted warnings, but Sam was wearing hearing protection and the yells didn't reach him.

Just one day earlier, another large rock had tumbled down the slope where the crew was working, seriously damaging a piece of equipment. Nonetheless,supervisors allowed excavators to head back to work above where Fitzpatrick and his brother were drilling boulders, ignoring a new safety plan, according to a WorkSafe BC investigation.

Sam and Arlen Fitzpatrick at work on Toba Inlet project

6 years ago

Duration 0:35

Sam Fitzpatrick uses an air-powered drill to bore holes in rock while younger brother Arlen watches on a Kiewit Corporation hydroelectric project near Toba Inlet. Sam would later be killed by a falling rock on the same site.

Investigators noteda "reckless disregard" for safety on the project, something Fitzpatrick had spoken up about in the weeks before he died.

Kiewit was originally fined $250,000 by WorkSafeBC for Fitzpatrick's death, but when the company appealed to the Workers' Compensation Appeal Tribunal, the penalty was slashed to less than $100,000.

That decision prompted Fitzpatrick's father, Brian, to approach the RCMP about opening an investigation. Police recommended charges in 2017.

Brian Fitzpatrick was a tireless advocate for his son, and he spent the last eight years of his life pushing for accountability in the tragedy.

Sadly, he died in the summer of 2017, shortly after learning the RCMP had recommended charges.

"This has been a long time coming, and it is a tragedy that Brian Fitzpatrick is not here to see this," Pearson said.

"When I heard about it, I was veering quickly between laughing and crying, and he would be doing the same thing, because it's a victory, but we lost a couple people in the process. Sam was the first loss."

The first appearance for Kiewitis scheduled for July 17 in Vancouver provincial court.

View a copy of the charging document