Alberta companyÌýBanff °µÍø½ûÇøorsÌý³¢³Ù»å.Ìýhas been foundÌýliableÌý³Ü²Ô»å±ð°ùÌý³Ù³ó±ðÌýSaskatchewan Employment ActÌýon charges that relate to ³Ù³ó±ðÌýworkplace death of 21-year-old Eric Ndayishimiye, whichÌýoccurred in 2016. The company will appear in court for sentencing onÌýMay 21.
Ndayishimiye, who had been on the job less than half a year,Ìýwas working on the ground floorÌýstripping nails atÌý³Ù³ó±ðÌýJim Pattison Children’s HospitalÌýconstructionÌýsiteÌýin SaskatoonÌýwhen a 560-kilogram metal table cart fell on him.Ìý
It is the second Saskatchewan judgment faulting construction companies forÌýlack of safeguards thatÌýresulted inÌýfatalities, in separate incidents,Ìýrendered by the provincial court in less than a month.ÌýÌý
BLS Asphalt,Ìýa family-owned businessÌýbased in Regina,Ìýhas been found responsible for the death of 33-year-old Troy Lucyk, also new on the job with only six monthsÌýexperience. He became entangled in the tail pulley of a conveyor system whileÌýworking at the company‘s gravel crusher siteÌýin 2017.ÌýBLS Asphalt, found guilty on two of three chargesÌýbrought under theÌýact,ÌýwillÌýalso be sentencedÌýsome time inÌýMay.ÌýÌý
Banff °µÍø½ûÇøors, a subcontractor on the project,Ìýhad earlier pleaded not guilty to charges ofÌýfailing to make arrangements for the use, handling and transport of trolleys in a manner that protects the health and safety of workersÌýand, secondly,Ìýfailing toÌýprovide any necessary information, instruction, training and supervision resulting in the death of a worker.Ìý
According to testimony, the cart arrived at the site minus twoÌýinterlockingÌýpins needed to hold it together and twoÌýpinsÌýwere improvised at the siteÌýfrom threaded rods. The cart, which is a table with wheels, is used to form and dry slabs of concrete and requires two individuals to handle it. Only one person was handling it at the time and an employee testified the pins had been removedÌýshortly beforeÌýto allow it to be moved to aÌýnarrower space when it collapsed.ÌýÌýÌý
Ndayishimiye was rushed to hospital butÌýwas pronounced deadÌýfromÌýmultipleÌýbluntÌýtraumasÌýto the head, throat and chest.ÌýÌý
In a long court case that started in 2019, Banff °µÍø½ûÇøors brought forward testimony from an expert witness that indicated the cart was poorly designed, which the supplier refuted.ÌýÌýÌý
Saskatchewan Provincial Court Judge Brent Klause said this was not a case of the employee being in the wrong place at the wrong time but of the company failing to protect its employee from harm.ÌýÌý
He saidÌýthe company “was willing to spend money on an expert to shift the blame afterward but was not willing to spend the time and money to get the correct parts and safety manuals for the equipment in the first place.”ÌýÌý
Pilosio Canada Inc.,ÌýtheÌýcartÌýsupplier,Ìýwas also charged under ³Ù³ó±ðÌýSaskatchewan Employment ActÌýfor failing to ensure equipment supplied to any new owner, contractor, employer or worker is safe when used in accordance with supplier instructions. Pilosio‘s legal counselÌýargued the cart had not been used in accordanceÌýwithÌýitsÌýinstructions, the company provided training, and the cart had beenÌýmodified withoutÌýconsent.ÌýÌýÌý
JudgeÌýKlauseÌýdismissed the charge against Pilosio.Ìý
HeÌýremarked onÌýdelays in resolving the cases.ÌýThe trial involving the two companies began in August 2019 but had numerous adjournments and what Klause called multiple “time-consuming applications” which he said were “unnecessary” but also acknowledged that COVID-19Ìýplayed a role.Ìý
In the BLS Asphalt judgment, which wasÌýhanded down March 30,ÌýBLS AsphaltÌýwas found liable for ³Ù³ó±ðÌýdeathÌýofÌýLucyk.ÌýHeÌýwasÌýworking as a loader operator at the crusher gravel pit near Ceylon, Sask.Ìýwhen a chute became clogged with rock and sand. Lucyk went to assist his supervisorÌýin removing the clog byÌýjumping up onto an uncovered frame over a moving tail pulleyÌýon a conveyor system.ÌýLucyk slipped,Ìýfalling into the tail pulley withÌýhis legÌýendingÌýup wrapped aroundÌýtheÌýdrumÌýroller. HeÌýdied fromÌýmassive blood lossÌýasÌýcrew members attempted a rescue.ÌýÌýÌýÌýÌý
Police attending the scene and testifying at the trial, said Lucyk’s leg had been pulled in all the way up to his hip and the leg appeared to be dislocated from the hip socket. The fire department attended the scene and needed to break down the mechanism to free the leg. Ìý
The crownÌýclaimed three violations of regulations under ³Ù³ó±ðÌýSaskatchewan Employment Act.ÌýThe first was a failure to provideÌýany information, instruction, training and supervision that is necessary to protect the health and safety of workers at work as required.ÌýWhile Lucyk had been given safety training at theÌýcrusherÌýsite,ÌýProvincial Court Judge Michelle BrassÌýsaidÌýthere was no training on how to clear the chute when it became clogged.ÌýÌýÌýÌý
“Unclogging the chute was not uncommon and was a task that had to be done repeatedly.  Depending on the conditions, the chute may need to be unclogged daily, up to three or four times a shift, or weekly,” the judgment said. The task usually fell to a grounds worker, but there was no one on duty so the other workers took on the role. There wereÌýno written instructions on how to clear ³Ù³ó±ðÌýchute.ÌýÌý
The second charge related to having a stopping device in clear view and easy reach. The judge found ³Ù³ó±ðÌýcrown failed to prove its chargeÌýas the tower operatorÌýat his post, as the supervisingÌýentity, had aÌýstopping device that was in direct view and readily available as per the requirement ofÌýthe legislation. The court testimony found it was common practice to leave the conveyor system running while the chute was being cleared.ÌýÌý
The last charge related toÌýa failure to provideÌýsafety guarding on ³Ù³ó±ðÌýtail pulley.ÌýJudge Brass ruled on the third charge,Ìý³Ù³ó±ðÌýcourtÌýfoundÌýBLS failed, on a balance of probabilities, to show that it exercised due diligenceÌýbecause of three main factors.ÌýÌý
“First, other tail pulleys on site had safeguards. Second, the tail pulley at issue was manufactured with anchoring points to bolt a safeguard in place. Third, BLS was able to install a cover on the tail pulley at issue without new or complex resources to do so,” she ruled.ÌýÌý
These courtÌýdecisions faulting two members of the construction industry come asÌý³Ù³ó±ðÌýSaskatchewan Workers’ Compensation Board moves into its last year of a 2019-2021 strategy aimed at reducing workplace deaths. In 2018, it released data that showed a growing concern with workplaceÌýdeaths,ÌýwhichÌýwere averaging 37 fatalitiesÌýa yearÌýover a 15–year period.ÌýLatest figuresÌýrecord 34ÌýdeathsÌýfor 2020, with approximately half related to occupational diseases.ÌýÌýTwo peopleÌýdied from being caught in equipment, two died from being struck by equipment.ÌýÌý
Saskatchewan has a maximum penalty of up to $1.5 million for incidents causing the death of a worker.Ìý Ìý
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