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System's past failures loom large over investigation into Kelowna crane collapse

Past failures loom large

It’s been nearly two years since five men were killed in a crane collapse downtown Kelowna and the police investigation into the incident is nowhere near complete.

Earlier this month, WorkSafeBC announced it was not releasing its findings on the cause of the July 2021 collapse at the recommendation of the RCMP, which is handling a criminal investigation into the incident.

That police investigation to determine if there was criminal negligence related to the collapse is expected to continue for an “extended period” of time. How long that may be is anybody’s guess.

B.C. has a recent history of dropping the ball when it comes to high-profile worker fatalities, and Kelowna’s crane collapse will test a system that has undergone years of review and change in the wake of those failures.

Both sloppy, and slow, investigators have undermined prosecutions for workplace criminal negligence in the past in B.C. and those working on the Kelowna crane collapse will aim to avoid repeating those mistakes.

MILL EXPLOSIONS

In 2012, two separate mill explosions in Prince George and Burns Lake killed four workers and hurt 42. WorkSafeBC botched the ensuing investigations, leading Crown prosecutors to decline to lay charges.

Evidence related to the blasts was collected without warrants and people were interviewed without being informed of their Charter rights, making much of the evidence likely inadmissible in court.

The mill owners ended up being fined a combined $1.7 million for the blasts.

SAM FITZPATRICK

Sam Fitzpatrick, 24, died in February 2009 while working as a drill and blast crew scaler for Kiewet near Toba Inlet when a large boulder rolled down from a slope above him. Two excavators were working above Fitzpatrick at the time.

The day before Fitzpatrick’s death, there had been a near miss after a rock rolled down the same slope.

Ten years later, Kiewet and two of Fitzpatrick’s superiors were charged with criminal negligence. In August 2021, days before the trial, the Crown stayed the charges. The matter had taken so long to get to trial a blasting expert relied upon by the prosecutors died and the memories of witnesses had degraded.

Kiewit, which denied wrongdoing, was fined $100,000 for the death.

YEARS OF REVIEWS

In the years following the mill explosions, the provincial government would commission the Dyble (2014), Macatee (2014) and Helps (2019) reports, which made dozens of recommendations about WorkSafeBC investigations. All the recommendations were implemented, says WorkSafeBC.

“It's really important to show that the time and effort that everybody put into working on regulation changes and providing for a new system of investigations… that we're actually going to get results, we're actually going to get people held responsible,” said Josh Towsley, executive board member of the International Union of Operating Engineers Local 115, a trade union with 13,000 construction workers in B.C. and the Yukon.

IUOE Local 115 is urging the RCMP to dedicate all the resources necessary to bring its crane collapse investigation to a close, citing both the mill explosion and Sam Fitzpatrick cases as past failures.

“No one was held responsible in either case and this should not happen to the five families mourning those lost in the Kelowna crane collapse," said Brian Cochrane, the union’s business manager.

Despite past failures, Towsley says the one piece of optimism he’s holding onto is that the WorkSafeBC appears to be acting cautiously and “doesn't want to do anything to hinder the possibility of somebody being held responsible.”

But he remains concerned about how long that investigation could drag on for, calling two years already “a significant amount of time.”

“Ten years is an unreasonable amount of time and we need the RCMP to dedicate the necessary resources to conclude this in a timely way,” Towsley continued.

The United Steelworkers of Canada, meanwhile, says WorkSafeBC needs to find a way to release at least a part of its report into the cause of the collapse now.

“I don't know that there's negligence here. I don't. But what I do know is a crane goes up and down in this province all the time,” said Ed Kent, USW health safety and environment coordinator.

“And yet we don't know what caused this accident and WorkSafe by withholding this information — we don't know.”

WorkSafeBC says that while it won’t release its findings for now, it has integrated “key learnings” into its ongoing crane safety initiatives.

Both Towsley and Kent said that at this point, those initiatives have generally not made it to worksites.

The United Steelworkers have long been one of the most vocal trade unions in the country when it comes to worker safety, urging police and prosecutors to treat workplace deaths as criminal events.

“It’s quite simple, really – if you kill a worker, you go to jail,” Kent said.

In 2004, the federal government enacted the Westray Law, named after a 1992 mine explosion in Nova Scotia that killed 26 workers. It established criminal liability for corporations in workplace deaths.

But since then, the law has been used extremely rarely.

The failed Sam Fitzpatrick case was the first time the law was used to charge a large multinational corporation in Canada.

More than 1,000 workers die on the job every year in Canada and only a tiny fraction, far less than 1%, are prosecuted.

“Not that I believe every workplace death is due to negligence,” Kent said. “But there have certainly been a number of them that when you look at them from the outside, you would think.”

The BC Prosecution Service said in a statement to Castanet that its records do not differentiate between criminal negligence causing death prosecutions in and outside the workplace, so it could not provide a list of successful prosecutions on the subject.

A Crown counsel spokesperson highlighted a 2016 case that saw Stave Lake Quarries plead guilty to criminal negligence causing death of a worker and receive a $115,000 penalty. At the time, that was the just the third time in Canadian history a corporation had been found guilty of criminal negligence causing death.

The BC Prosecution Service noted that in cases of workplace deaths, they also consider regulatory charges such as under the Workers Compensation Act rather than the Criminal Code.

Kent says given the high profile nature Kelowna crane collapse, he’s hopeful the system will get this one right.

“I think given the circumstances of this event as high profile, as it was in a downtown core, a crane collapses and people die. I'm pretty sure that the investigators from the RCMP, it wasn't just a constable looking, I'm sure there were serious crimes investigators that were there,” he said.

“Which I hope gives me confidence that the investigation will be handled properly. And if there is negligence, then charges will result.”

PARALLEL INVESTIGATIONS

The Kelowna crane collapse is being investigated by parallel and independent investigations. WorkSafeBC looked into, and apparently determined, the cause of the collapse. Police are trying to determine if criminal negligence causing death occurred.

WorkSafeBC also has the power to open quasi-criminal prosecution investigations to bring charges under the Workers Compensation Act, but that prevents Criminal Code charges from being brought.

Ed Kent of the United Steelworkers says he wonders “why WorkSafe has finished and the police are still investigating.”

“To me, I don't quite get the correlation between there. I think if the investigation is ongoing, the investigation should be ongoing by both.”

While the WorkSafeBC and police investigations are said to be independent, a memorandum of understanding between the police and WorkSafeBC allows for information sharing between the two agencies.

“During parallel investigations, it is essential that the investigating agencies have a coordinated approach to ensure that the information and evidence obtained during the investigations is effectively managed,” WorkSafeBC said in a statement to Castanet.

“The premature release of information or evidence could have a significant negative impact on the other agencies' investigation. In this instance, the release of the WorkSafeBC investigative findings may have a negative impact on the RCMP investigation and any subsequent prosecution.”

The crane that collapsed during dismantling was operated by Stemmer Construction. Two of the victims, brothers Eric and Patrick Stemmer, were part of the Stemmer family. Two other workers died — Cailen Vilness and Jared Zook — along with Brad Zawislak, who was working in a nearby building that was hit by the falling crane.

The only sliver of information about the police investigation came out in court last year when a judge ruled police could continue to hold 112 pieces of seized evidence. Kelowna RCMP, however, said in a statement earlier this month it was working through "thousands" of pieces of evidence. The force declined to comment further.

Kent says, ultimately, the families of the victims "deserve answers — in a timely fashion."



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