By Isaac Phan Nay | The Tyee
More than 13 years after pipe layer Jeff Caron was crushed to death while replacing a Burnaby storm sewer, a B.C. Supreme Court judge found his employer J. Cote & Son Excavating guilty of criminal negligence.
Presiding justice Michael Brundrett said in his decision that through a series of omissions and oversight of safety procedures, the Langley-based construction company failed to meet its duty to ensure the health and safety of its workers.
On Thursday, he found the company guilty of one count each of criminal negligence causing bodily harm and criminal negligence causing death.
He acquitted David John Green, the foreman on the project, of the same charges plus one additional charge of manslaughter.
Green declined to comment for this story.
Brundrett found the company’s conduct represented a marked and substantial departure from the conduct of a reasonable person, largely based on the company’s ineffective safety precautions and “management-friendly” interpretation of a flawed safety certification.
“There is an organizational failure here to ensure adequate safe practices that the senior officers should have detected,” Brundrett said in the decisions. “Much greater care and attention to the prevention of foreseeable hazards was called for.”
The case is a rare example of a company facing criminal charges for a death in the workplace, according to labour lawyer Shafik Bhalloo, who was not involved in the case.
That’s because to prove criminal negligence, the Crown needs to prove the accused breached its duty to care for employees, that the breach represented a wanton or reckless disregard for the lives or safety of others and that the breach directly led to the harm.
Cheyanna Kamahkoostayo, Caron’s older sister, said that while she’s happy with the judgment against the company, she wished there was more accountability for the death of her brother.
“Through this whole journey they never acknowledged that they basically just sent my brother home in a coffin,” she said. “Accountability would be to say, ‘I shouldn’t have allowed him to go into the trench. I should have stopped work that day.’”
Over the course of the 12-week trial, Justice Brundrett heard from Green and Jamie Cote, WorkSafeBC investigators, neighbours and eyewitnesses and Thomas Richer, a construction worker injured when the sewer collapsed.
In October 2012, Green was overseeing the replacement of a storm sewer line in a residential neighbourhood in Burnaby. The project involved excavating a trench in a lane behind Edinburgh Street. A retaining wall — approximately 1.8 metres at its highest point — ran along the side of the trench.
Video taken before the collapse showed a crack visible in the retaining wall.
A geotechnical engineer had been hired to examine the trench and prepare a certificate assessing the safety of the project.
The engineer, Edward Yip, prepared a certificate that the defence said suggested the project was safe as long as heavy “loads” were kept a distance of about two feet from the edge of the trench.
That wording was ambiguous, Brundrett said. Green and Cote told the courts that when they read the certification, they assumed Yip’s mention of loads included the retaining wall.
But Yip later had his registration cancelled with the regulating body for engineers and geoscientists in B.C., after admitting the certification was inadequate and did not address the retaining wall.
Brundrett found the company’s interpretation of the report ignored the risk posed by the retaining wall and inherent to working in a trench.
“At the very least, a reasonable observer would perceive an ambiguity in the certification and seek clarification,” Brundrett said.
The judge also found Green did not take effective safety procedures on the project.
He described Green as a hard worker who rose to the position of junior foreman. He told the court he learned mostly on the job and did not have any formal training reading technical reports.
Green told the court he usually had informal safety meetings — “or chit-chats” — every morning with staff on most job sites.
The judge found that these meetings were not documented or standardized and lacked oversight from management. He also found Green did not have a safety plan for working in the trench, besides calling 911.
“While seemingly minor on their own, these lapses were insidious because they represented a lack of safety procedures that could have prevented the wall collapse,” Brundrett said.
On Oct. 11, 2012, pipe layer Jeff Caron was working in the newly excavated, nearly three-metre-deep trench with Thomas Richer. Green and another employee were working above the trench.
The retaining wall collapsed, falling on top of Caron. He died of multiple blunt-force trauma injuries.
According to the decision, Richer ran toward Caron, trying in vain to pull him from the rubble. Green, who had been standing outside of the trench, called first responders.
A WorkSafeBC investigation later found the wall had collapsed because of the company’s excavation of the sewer line.
Brundrett said that while Green failed in his duties to ensure the health and safety of employees, he did not have enough training or knowledge to recognize that the engineer’s certification was flawed.
He said the Crown could not prove Green was criminally negligent in the accident.
“Mr. Green made a wrong conclusion based on poor judgment,” he said. “A conclusion based on poor judgments does not necessarily amount to a wanton or reckless disregard for the safety of others.”
Meanwhile, he said, the company’s failure to provide Green with training, to ensure employees were taking proper safety precautions and to recognize the error in the certification represented a reckless disregard for the lives and safety of workers.
“‘We’ve always done it this way’ does not by itself establish that reasonable steps are in place to prevent bodily harm in high-risk workplaces,” Brundrett said.
Bhalloo, who is also a professor at Simon Fraser University, said most workplace deaths are addressed under the Workers Compensation Act instead of criminal charges.
“I can unequivocally say that criminal charges against companies and supervisors for workplace deaths in British Columbia or across Canada are rare,” Bhalloo said in an email.
And while she still wants more acknowledgment of her brother’s death, Kamahkoostayo said she’s satisfied with the charges against the company.
“I’m just glad there is some accountability on the company side,” she said. “Hopefully, this decision will save future lives.”
