A major Canadian union and safety expert are blasting a decision by British Columbia prosecutors to effectively drop a criminal negligence prosecution of U.S. construction giant Kiewit Corp. and two former construction managers, just as trial was set to start, in the death more than a decade ago of a 24-year-old company site employee.
The B.C. Prosecution Service has stayed proceedings in criminal negligence charges filed in 2019 in the death of Sam Fitzpatrick, a rock scaler killed by a falling boulder on a remote hydroelectric project in northern British Columbia.
In a statement, B.C. prosecutors cited the death of a blasting expert who had been integral to the case, as well as key witness memories of the incident that “have degraded significantly.”
The decision came one week before the trial of Kiewit and the two former site managers was set to start on Sept. 7 in a provincial court.
The decision was a major blow to Fitzpatrick family members, who had pushed authorities for years to review the accident, as well as the United Steelworkers union, which has backed the family’s legal campaign.
Barring an appeal, the decision also marks the end of a rare case of a major company facing criminal charges under Canada’s Westray Law. Enacted in 2004, it was named after the 1992 Westray mining explosion in Nova Scotia that killed 26 miners, despite multiple safety concerns raised by employees, government inspectors and union officials, observers say.
“We are extremely disappointed in the decision from the BC Prosecution Service not to prosecute the case,” said Stephen Hunt, steelworkers district director in Burnaby, B.C. “Sam Fitzpatrick died more than a decade ago and criminal charges were only laid in 2019 after a long campaign for accountability.”
Steven Bittle, an associate professor of criminology at the University of Ottawa, said "the decision to stay the charges is infuriating on many levels.” It is not clear if the Fitzpatrick family will appeal to BC’s attorney general, an option Bittle says is open to members.
Responding to the decision in a statement, Kiewit said it is “gratified” with the action by BC prosecutors and said the company continues “to offer our sincerest condolences to [Fitzpatrick's] family, friends, and those who worked with him for their loss.”
If Kiewit had been found guilty in a criminal trial, there could have been serious ramifications for the company that likely would have interfered with efforts to win new work on public projects in Canada, Bittle noted in a previous interview.
“It has always been our company’s belief – and that of our experts – that the rockfall that took Sam’s life was a tragic accident and was not caused by the actions of any personnel working on the site,” Kiewit said.
Provincial safety agency Worksafe BC issued a $250,000 (C) fine against Kiewit in 2011 for various safety violations that its inspectors found at the project site where Fitzpatrick died—the largest penalty the safety regulator would issue that year.
The fine was reduced to less than $100,000 (C) on appeal two years later by Kiewit, with the appellate tribunal ruling that it could not determine if company decisions directly led to the boulder striking Fitzpatrick, but still noting that the firm “committed high risk violations with reckless disregard.”