Reckless disregard: Examining the workplace death of Sam Fitzpatrick
Brian Fitzpatrick's son, Sam, was killed on a mountain worksite, crushed by a boulder. The employer Kiewit was found to be grossly negligent.
Photograph by: Glenn Baglo , PNG
Brian Fitzpatrick was sitting in his living room watching TV when his son Arlen called. It was late afternoon.
“You’re in early,” Brian said.
There was silence, and then Arlen’s voice, dead-tired and quiet.
“Sam is gone, Dad.” A long pause. “Sam is gone.”
Brian is an old West Coast logger. He knew about job hazards. He was a truck driver on the massive Sea-to-Sky Highway job, working along with his sons, a couple of big strong boys who scaled sheer granite walls, hanging from ropes to pry out and knock down boulders in order to make the job site safe.
In early 2008, Brian had resigned from his lucrative Sea-to-Sky job with Peter Kiewit Sons Co., unhappy with an aggressive American supervisor and a rockfall accident that nearly killed him.
The supervisor, Jerry Karjala — known as General Jerry to leery subordinates — was now the boss of Sam and Arlen on the Toba-Montrose Hydroelectric Project, about 100 kilometres north of Powell River.
Memories of the Kiewit boss flashed through Brian Fitzpatrick’s mind. He sat there with the phone to his ear, watching rain streaks on the window. He felt numb. All that matters now, Brian told himself, is that Sam is dead.
“When are you coming home?” Brian said. “Arlen, I want you to come home.”
•••
Early in the morning on Feb. 22, 2009, a light rain was hitting the slopes of Toba Inlet, a deep glacier-fed fjord that cuts into B.C.’s Coast Mountains. It hadn’t rained for three weeks.
The winter soil was starting to thaw, making the precarious work of blasting, drilling and moving rock more hazardous than ever for Kiewit crews.
At 5:30 a.m., earthworks superintendent Jerry Karjala and his crew had a planning meeting. The day before, a large boulder had been dislodged by an excavator, operated by a young driver named Jesse Taylor, and careened downhill. It smashed into a mobile drill rig, just missing the crew working below.
Work was halted and crews were sent back to camp for an emergency safety meeting. For a while, Karjala’s men had been working above and below each other on steep terrain, but new safety rules were written by Karjala and his foremen, banning the practice.
A safety inspection report signed by Karjala said the worst hazard for the next shift would be “rocks rolling downhill to workers below,” and the corrective action was “no work below until top section finished.”
But for unknown reasons, it was decided that Taylor and another excavator driver would continue to work above the drill and blast crew that day.
Later that morning, Arlen Fitzpatrick, 22, and Sam Fitzpatrick, 24, arrived on the job site. A supervisor asked the brothers to hand-drill a shed-sized boulder on the rocky ledge below the excavators.
Arlen went first, and at about noon Sam took over. Arlen walked 30 feet downhill to eat his lunch in the cab of a hoe drill, while chatting with the drill operator, Ewen Clark.
About 1 p.m. it started raining harder, and up above, Taylor saw some rubble sloughing off a rocky bank.
Suddenly he saw a pickup-sized boulder start to slowly roll toward a trough above Sam’s drilling site. The boulder hit a flat spot and seemed to stop, according to Taylor, but when he looked again it was moving. Taylor got on the radio and started screaming for Sam and Arlen to get out of the way.
Arlen and Ewen Clark heard Taylor’s expletive-filled warning and both looked uphill at Sam, who was calmly plugging away with his back to a 15-foot cliff, his jackhammer squealing and rock dust flying.
The men screamed and waved at Sam, but he couldn’t hear a thing. At the last moment Sam looked at his brother. He must have caught the panic on Arlen’s face, and he turned back just as the boulder dropped off the cliff. It smashed through Sam like a meteor and shattered on the ground, sending shrapnel flying.
Arlen screamed “No!” and ran toward the ledge where Sam lay, but Clark scrambled up first.
“Is he all right? Is he all right?” Arlen shouted.
Bones poked out of Sam’s legs, blood was running from his mouth and ears and the ground was covered in blood spray. The back of his skull was open. Clark checked for a pulse. Sam was gone. Clark and the crew’s foreman, Warren Eheler, held Arlen back. They didn’t want him to see.
Taylor appeared at the top of the cliff and looked down.
“What did you do to my brother?” Arlen shouted.
“It wasn’t me,” Taylor said, pointing uphill to the right. “I was way over here.”
•••
According to veteran WorkSafe BC safety officer Barbara Deschenes, supervisor of fatal and serious injury investigations, no coroner’s report was needed. It was determined Sam Fitzpatrick died immediately of massive head injuries. After a lengthy probe into Sam’s death, Deschenes found that Kiewit was “reckless and grossly negligent,” with respect to rockfall hazards that were “glaringly and objectively obvious.”
In March 2011, the Workers Compensation Board (WCB) fined Kiewit $250,000 for a number of safety violations in connection with the fatality, and a potentially lethal boulder accident the previous day.
Documents, including a WCB inspection report, indicate Deschenes’ investigation was thwarted to some extent because “the employer’s senior management personnel failed to co-operate . . . through not disclosing that a superintendent involved with the fatal incident was present at camp when investigating authorities attended to investigate on Feb. 23, 2009 . . . and the employer did not control or prevent the departure from the work site, right after the fatal incident, of most witnesses.”
Interview records show Deschenes had to sort through vague and inconsistent statements and accounting for decisions on the part of Kiewit employees.
She reported that Kiewit’s own investigation suggested that Taylor had dislodged the boulder that smashed downhill on Feb. 21 (the day before Sam’s death) — causing a minor injury and about $65,000 damage to a machine drill — although Taylor claimed not to have seen the boulder fall.
The boss, Jerry Karjala, also claimed ignorance about the origins of the Feb. 21 boulder, telling Deschenes: “No I surely don’t, and I don’t think, well I don’t know,” where it came from.
Nevertheless, according to a subordinate who attended the emergency stand-down meeting, Karjala was adamant and decisive in ordering that crews would not be positioned below Taylor the next day.
Days after Sam died, Arlen Fitzpatrick told investigator Deschenes that Sam had expressed serious fears at the safety meeting and asked for an emergency evacuation plan to be written up for scalers exposed to rockfall danger. There was no such plan before Feb. 21, WCB documents say.
•••
Two days after Sam’s death, in a tape-recorded police interview obtained by The Sunday Province, Arlen tells a Squamish RCMP officer: “I think it is important to know me and Sam both didn’t want to go there and do that. We had a meeting the day before about rocks coming down and narrowly missing these other guys.”
Arlen tells the officer that after the emergency safety meeting, he went to his construction manager, Tim Rule, asking for more scaling workers to be hired, and then, “spoke up and said, ‘Could we do [the boulder] with the hoe drill? It would be easier and safer.’”
According to Arlen, Rule said: “Arlen, I’d love to help you, but you really got to talk to Jerry Karjala.”
Rule denied that the conversation took place, according to Deschenes’ investigation.
When the brothers arrived on site Feb. 22, they did not talk to Karjala, according to her report.
Drill and blast engineer Paul MacDonald persisted in ordering the brothers to jackhammer a large boulder, and they at first resisted, according to Arlen. But, Arlen told police, MacDonald “said the hoe drill has better things to do,” and the brothers relented because “he’s the boss.”
Arlen told an RCMP officer that he saw Karjala — who was “running the show out there” — come to talk with Sam and Arlen’s foreman Warren Eheler around noon, near where Sam was drilling.
A review of five witness statements obtained by The Sunday Province shows that an RCMP investigator attempts to learn from Taylor what caused the fatal boulder to roll and whether it was normal procedure for crews to work above and below each other. But there is no indication police investigators probed whether Kiewit managers knowingly placed Sam and Arlen into an area prone to rockfall hazard.
In his statement, Arlen suggests crews were working under time pressure and the scalers were not given adequate time to safely clear rocks and boulders.
“The area where the rock came out of is an area we had blasted it, but we never scaled it,” Arlen tells an officer. His voice trails off sadly as he says, “because, never enough time, you know. They don’t give us, you know … never enough time.”
Scaling means stabilizing steep rock terrain by removing rocks and debris and also attaching mesh and bolts. Scaling can be completed by machines, or on steeper pitches, by specialized scalers such as Sam and Arlen, who climb down from the tops of bluffs and cliffs suspended by climbing ropes, and manoeuvre into tight corners, prying rubble and boulders loose by crowbar.
In his police interview, Sam and Arlen’s foreman Warren Eheler contradicts Arlen’s testimony and volunteers a number of statements indicating Kiewit managers bear no responsibility for Sam’s death.
“Everything looked safe I mean, I even talked to Arlen a few hours before and I said, ‘Are you guys comfortable where we are? Can I do anything to make you safer?’ and he said, ‘No, everything is all good,’” Eheler says, in his police interview. “It was perfectly scaled. It was like the best place we’d been in months, in reality . . . nobody can blame these fellows or anything else . . . it’s a work accident.”
Later, Eheler admitted to a WorkSafe investigator that there were loose rocks above Sam and Arlen, and “we were going to scale that.”
“Without question . . . it was not properly scaled,” project manager Chris Dandurand admitted to Deschenes in a July 2009 interview.
In paper records and audio tapes of both the WorkSafe and RCMP investigations, there seems to be no good answer for the most puzzling question: Why would the earthworks crew override the emergency safety plan made on Feb. 21?
WCB Investigator Deschenes suggests the earthworks supervisors felt they could manage the risk: “It appears [they] thought it would not be hazardous to have the excavators work upslope of the drilling crew because the excavators would be working on terrain less steep than the terrain [involved in the previous day’s rockfall].”
However, according to Deschenes’ WCB submission, Kiewit argued that “excavator operators unwisely ‘placed themselves’ above the drilling and scaling crew.”
It was not determined whether excavators had moved the boulder that killed Sam, but “the investigation established the excavator [Jesse Taylor] did not strike the rock immediately prior to the rock’s motion,” Deschenes wrote.
Two days after Sam’s death, at the Squamish RCMP detachment, Taylor would say: “The spot we were in is a critical spot. A hairy situation.”
Taylor claimed that his understanding of the work plan was that large machine drills would be used to clear the boulder, not Sam and Arlen.
“It was a funnel coming down the mountain, so everything that runs down that mountain was going to go down that channel basically, and I knew they were down there working,” Taylor told a police interviewer. “I wasn’t sure why the plan changed [but] it wasn’t my say or my call, so we continued on.”
Kiewit appealed WCB’s $250,000 penalty, arguing WCB had not linked the boulder that killed Sam to the crew working above, or inadequate scaling of hazardous rocks.
In the latest ruling, two months ago, review officer Bruce Scott upheld the finding that Kiewit bore responsibility.
Scott said he was not persuaded that Kiewit was wilfully negligent, but “there was reckless disregard.”
“On a balance of probabilities . . . the employer’s failures and violations were a material cause of the young worker’s death regardless of what actually caused the rock to move,” Scott wrote. “It amounted to gross negligence . . . the cause of the fatal incident should have been glaringly obvious.”
Scott, in his reasoning, said the standard for “reckless disregard” is greater than simply failing to take steps to ensure worker safety. Citing a previous case, Scott says the failure must be “wanton . . . heedless . . . extreme . . . gross . . . highly irresponsible.”
Kiewit spokesman Thomas Janssen told The Sunday Province the company is preparing another appeal to the Workers’ Compensation appeal tribunal.
Janssen said Kiewit can’t comment on Scott’s ruling, or allegations about Kiewit, its managers, and Jerry Karjala. Janssen said that generally speaking, if employees have complaints with managers they can call an anonymous line to report incidents. A number of attempts by The Sunday Province to contact Karjala at his home in Montana were unsuccessful.
•••
Did Sam and Arlen Fitzpatrick feel intimidated by Jerry Karjala and feel pressured to complete a dangerous assignment? If so, they are not alone, according to documents obtained by The Sunday Province.
A Jan. 31, 2008 grievance letter to Kiewit from the Christian Labour Association of Canada — the union for Kiewit workers on the Sea to Sky Highway job — refers to numerous complaints against Karjala, specifically for allegedly breaching WCB procedures by firing workers who refused to perform unsafe tasks.
“Most of the membership’s issues are directed at supervisor Jerry Karjala,” the grievance letter says. “The union alleges that . . . his behaviour and language are abusive . . . there are multiple incidents where Mr. Karjala has verbally abused workers both in person and publicly over the Kiewit radio.”
The grievance letter “alleges that Kiewit violates [Workers’ Compensation procedures] by having the supervisor demand workers perform unsafe acts with threats of discharge if the employee fails to comply.
“The membership is upset and intimidated by the actions of Mr. Karjala,” the grievance letter says. “The Union is asking that Mr. Karjala be re-assigned to another project and the terminated workers be returned to their previous jobs with full back pay.”
The fired workers were re-hired, and Karjala was sent to Toba Inlet after the grievance was filed.
Dean Riggs, who worked the Sea to Sky job and on the Port Mann Bridge before being laid off last year, said he wasn’t surprised at Sam’s death on the Toba Inlet job. In his opinion, the surprise is that more Kiewit workers haven’t been injured, Riggs said.
According to statistics from WorkSafe BC, Kiewit operations have had 83 serious injuries from 2000 to 2011, and six fatal injuries.
“It’s all about production. The faster they get it done, the more money they make,” Riggs said. “Jerry, it was his way or the highway.”
Riggs said that when Karjala arrived on the Sea to Sky job, he shocked workers with his “tyrant”like commands. He wanted his workers and machines moving non-stop, Riggs said.
Riggs, who was on the work site safety committee, noted one Karjala firing on the Sea to Sky job that he sees as meaningful.
An excavator operator was “on a slope that he didn’t feel was safe, and Jerry was yelling and screaming. He told the fellow if he didn’t do it he would be replaced.”
Riggs says the worker was replaced that day with Jesse Taylor, the excavator who was working above Sam Fitzpatrick on Feb. 22, 2009.
“Jesse and Jerry got along famously [because] Jesse didn’t want to say no,” Riggs said. “He sent Jesse into a lot of extreme situations. Jesse was taking his life in his hands many times.”
Mike Pearson, a blasting superintendent on the Sea to Sky job, said a productive and safe work environment went downhill fast when Karjala was “parachuted” in to “kick ass” and speed up production in late 2007.
“For everyone, from the loop mechanic to the project manager, it was, “If you don’t do what I say, I will fire you,’” Pearson said.
Pearson points to an incident in February 2008 that he believes was the beginning of the end for him on the Sea to Sky job.
High above the Squamish Highway, Pearson’s hand-picked crew of steep slope experts arrived at work to find the previous crew had left a “suspended avalanche” of loose rocks on the job site. Pearson says his crew decided to play it safe and take the day off, to allow for a path to be cleared through the rock field. When Karjala learned about the decision, he came on the radio and told Pearson to fire the whole crew.
Pearson refused, he says, and Karjala fired his crew.
Pearson says he knows many of the men who worked the Toba job.
“I got phone calls from guys that used to work for me when they came out of Toba back to camp,” Pearson says. The workers, says Pearson, believed the company was asking them to do things that would eventually kill them.
•••
Brian Fitzpatrick sits at his kitchen table in North Vancouver drinking black coffee. He says he started working in a logging camp near Lake Superior in Ontario when he was 21, but when he moved to B.C. — with steep slopes, nasty weather, big machines, massive logs — it was a whole different game.
“The loggers were a wonderfully intelligent and comical bunch, and they had a way of sneering at death,” he says. “If you were a dummy, they’d run you off. You need to have smart people around you, or you will get killed.”
He looks up from his coffee mug and frowns. “Well, I guess that brings us to Kiewit.”
“They bring up these hillbillies from the States, and they are just loudmouth bullies. It was just a minefield of death waiting to happen. It is all about making profits.”
When Kiewit appealed WCB’s $250,000 fine, Brian was even more scathing in his Dec. 2011 submission to the WCB review panel.
He wrote that the tragedy “put a horrible end to Arlen’s irreplaceable best friend, brother, and joy of life, and robbed me of ever seeing Sam’s warm smile again.” It’s almost impossible to talk to Arlen about that day — frantically shouting warnings and catching Sam’s eye at the last second, before seeing him “splattered like a bug” — Brian says.
“You can imagine what he must say to himself at night. ‘Why didn’t I see this? Why didn’t I say that? Why? Why?’” Brian says. “I would prefer it, if they both were killed, for Arlen’s sake. He’s toddling off into the sunset with no hopes and dreams. And if they both would have died, I could have consoled myself with the thought, ‘Oh well, those little rascals are still together.’”
Brian says his one drive now is to make the case that Jerry Karjala and Kiewit should be criminally prosecuted in Canada under Bill C-45.
Bill C-45, a new and rarely used law, provides means to criminally convict corporations that fail to protect the health and safety of their employees.
According to Vancouver lawyer Glen Orris — who has worked on a high-profile Bill C-45 case — to prove criminal negligence under Bill C-45 one must show an employer not only failed in the duty to ensure worker safety, but did so with “wanton . . . reckless disregard.”
WorkSafe BC did not recommend criminal charges to the Crown or refer Sam’s case to police for potential criminal negligence, spokesperson Donna Freeman said.
But Brian Fitzpatrick believes if a lawyer were to undertake the prosecution or the family were able to find a sympathetic government official to move the case forward, Sam’s death could be a blueprint for Bill C-45 prosecutions.
“I’m trying to bring some justice to my boy and other workers,” he says.
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“You’re in early,” Brian said.
There was silence, and then Arlen’s voice, dead-tired and quiet.
“Sam is gone, Dad.” A long pause. “Sam is gone.”
Brian is an old West Coast logger. He knew about job hazards. He was a truck driver on the massive Sea-to-Sky Highway job, working along with his sons, a couple of big strong boys who scaled sheer granite walls, hanging from ropes to pry out and knock down boulders in order to make the job site safe.
In early 2008, Brian had resigned from his lucrative Sea-to-Sky job with Peter Kiewit Sons Co., unhappy with an aggressive American supervisor and a rockfall accident that nearly killed him.
The supervisor, Jerry Karjala — known as General Jerry to leery subordinates — was now the boss of Sam and Arlen on the Toba-Montrose Hydroelectric Project, about 100 kilometres north of Powell River.
Memories of the Kiewit boss flashed through Brian Fitzpatrick’s mind. He sat there with the phone to his ear, watching rain streaks on the window. He felt numb. All that matters now, Brian told himself, is that Sam is dead.
“When are you coming home?” Brian said. “Arlen, I want you to come home.”
•••
 |
| Sam and Arlen Fitzpatrick |
Early in the morning on Feb. 22, 2009, a light rain was hitting the slopes of Toba Inlet, a deep glacier-fed fjord that cuts into B.C.’s Coast Mountains. It hadn’t rained for three weeks.
The winter soil was starting to thaw, making the precarious work of blasting, drilling and moving rock more hazardous than ever for Kiewit crews.
At 5:30 a.m., earthworks superintendent Jerry Karjala and his crew had a planning meeting. The day before, a large boulder had been dislodged by an excavator, operated by a young driver named Jesse Taylor, and careened downhill. It smashed into a mobile drill rig, just missing the crew working below.
Work was halted and crews were sent back to camp for an emergency safety meeting. For a while, Karjala’s men had been working above and below each other on steep terrain, but new safety rules were written by Karjala and his foremen, banning the practice.
A safety inspection report signed by Karjala said the worst hazard for the next shift would be “rocks rolling downhill to workers below,” and the corrective action was “no work below until top section finished.”
But for unknown reasons, it was decided that Taylor and another excavator driver would continue to work above the drill and blast crew that day.
 | |||
| This is what "hand drilling" or "hand-plugging" a boulder looks like. This is me in the 90's. The drill is powered by compressed air...is very noisy and a beast to tame. |
 |
| This is what a "hoe-drill" looks like. Converted from an excavator....hydraulic powered...and very fast. This at the Sea to Sky job, in 2006. |
Later that morning, Arlen Fitzpatrick, 22, and Sam Fitzpatrick, 24, arrived on the job site. A supervisor asked the brothers to hand-drill a shed-sized boulder on the rocky ledge below the excavators.
Arlen went first, and at about noon Sam took over. Arlen walked 30 feet downhill to eat his lunch in the cab of a hoe drill, while chatting with the drill operator, Ewen Clark.
About 1 p.m. it started raining harder, and up above, Taylor saw some rubble sloughing off a rocky bank.
Suddenly he saw a pickup-sized boulder start to slowly roll toward a trough above Sam’s drilling site. The boulder hit a flat spot and seemed to stop, according to Taylor, but when he looked again it was moving. Taylor got on the radio and started screaming for Sam and Arlen to get out of the way.
Arlen and Ewen Clark heard Taylor’s expletive-filled warning and both looked uphill at Sam, who was calmly plugging away with his back to a 15-foot cliff, his jackhammer squealing and rock dust flying.
The men screamed and waved at Sam, but he couldn’t hear a thing. At the last moment Sam looked at his brother. He must have caught the panic on Arlen’s face, and he turned back just as the boulder dropped off the cliff. It smashed through Sam like a meteor and shattered on the ground, sending shrapnel flying.
Arlen screamed “No!” and ran toward the ledge where Sam lay, but Clark scrambled up first.
“Is he all right? Is he all right?” Arlen shouted.
Bones poked out of Sam’s legs, blood was running from his mouth and ears and the ground was covered in blood spray. The back of his skull was open. Clark checked for a pulse. Sam was gone. Clark and the crew’s foreman, Warren Eheler, held Arlen back. They didn’t want him to see.
Taylor appeared at the top of the cliff and looked down.
“What did you do to my brother?” Arlen shouted.
“It wasn’t me,” Taylor said, pointing uphill to the right. “I was way over here.”
•••
 |
| Sam Fitzpatrick at the Toba job, posing with his pneumatic rock drill....this is the safety vest that I gave him on the Sea to Sky job |
According to veteran WorkSafe BC safety officer Barbara Deschenes, supervisor of fatal and serious injury investigations, no coroner’s report was needed. It was determined Sam Fitzpatrick died immediately of massive head injuries. After a lengthy probe into Sam’s death, Deschenes found that Kiewit was “reckless and grossly negligent,” with respect to rockfall hazards that were “glaringly and objectively obvious.”
In March 2011, the Workers Compensation Board (WCB) fined Kiewit $250,000 for a number of safety violations in connection with the fatality, and a potentially lethal boulder accident the previous day.
Documents, including a WCB inspection report, indicate Deschenes’ investigation was thwarted to some extent because “the employer’s senior management personnel failed to co-operate . . . through not disclosing that a superintendent involved with the fatal incident was present at camp when investigating authorities attended to investigate on Feb. 23, 2009 . . . and the employer did not control or prevent the departure from the work site, right after the fatal incident, of most witnesses.”
Interview records show Deschenes had to sort through vague and inconsistent statements and accounting for decisions on the part of Kiewit employees.
She reported that Kiewit’s own investigation suggested that Taylor had dislodged the boulder that smashed downhill on Feb. 21 (the day before Sam’s death) — causing a minor injury and about $65,000 damage to a machine drill — although Taylor claimed not to have seen the boulder fall.
The boss, Jerry Karjala, also claimed ignorance about the origins of the Feb. 21 boulder, telling Deschenes: “No I surely don’t, and I don’t think, well I don’t know,” where it came from.
Nevertheless, according to a subordinate who attended the emergency stand-down meeting, Karjala was adamant and decisive in ordering that crews would not be positioned below Taylor the next day.
Days after Sam died, Arlen Fitzpatrick told investigator Deschenes that Sam had expressed serious fears at the safety meeting and asked for an emergency evacuation plan to be written up for scalers exposed to rockfall danger. There was no such plan before Feb. 21, WCB documents say.
•••
Two days after Sam’s death, in a tape-recorded police interview obtained by The Sunday Province, Arlen tells a Squamish RCMP officer: “I think it is important to know me and Sam both didn’t want to go there and do that. We had a meeting the day before about rocks coming down and narrowly missing these other guys.”
Arlen tells the officer that after the emergency safety meeting, he went to his construction manager, Tim Rule, asking for more scaling workers to be hired, and then, “spoke up and said, ‘Could we do [the boulder] with the hoe drill? It would be easier and safer.’”
According to Arlen, Rule said: “Arlen, I’d love to help you, but you really got to talk to Jerry Karjala.”
Rule denied that the conversation took place, according to Deschenes’ investigation.
When the brothers arrived on site Feb. 22, they did not talk to Karjala, according to her report.
Drill and blast engineer Paul MacDonald persisted in ordering the brothers to jackhammer a large boulder, and they at first resisted, according to Arlen. But, Arlen told police, MacDonald “said the hoe drill has better things to do,” and the brothers relented because “he’s the boss.”
Arlen told an RCMP officer that he saw Karjala — who was “running the show out there” — come to talk with Sam and Arlen’s foreman Warren Eheler around noon, near where Sam was drilling.
A review of five witness statements obtained by The Sunday Province shows that an RCMP investigator attempts to learn from Taylor what caused the fatal boulder to roll and whether it was normal procedure for crews to work above and below each other. But there is no indication police investigators probed whether Kiewit managers knowingly placed Sam and Arlen into an area prone to rockfall hazard.
In his statement, Arlen suggests crews were working under time pressure and the scalers were not given adequate time to safely clear rocks and boulders.
“The area where the rock came out of is an area we had blasted it, but we never scaled it,” Arlen tells an officer. His voice trails off sadly as he says, “because, never enough time, you know. They don’t give us, you know … never enough time.”
Scaling means stabilizing steep rock terrain by removing rocks and debris and also attaching mesh and bolts. Scaling can be completed by machines, or on steeper pitches, by specialized scalers such as Sam and Arlen, who climb down from the tops of bluffs and cliffs suspended by climbing ropes, and manoeuvre into tight corners, prying rubble and boulders loose by crowbar.
In his police interview, Sam and Arlen’s foreman Warren Eheler contradicts Arlen’s testimony and volunteers a number of statements indicating Kiewit managers bear no responsibility for Sam’s death.
“Everything looked safe I mean, I even talked to Arlen a few hours before and I said, ‘Are you guys comfortable where we are? Can I do anything to make you safer?’ and he said, ‘No, everything is all good,’” Eheler says, in his police interview. “It was perfectly scaled. It was like the best place we’d been in months, in reality . . . nobody can blame these fellows or anything else . . . it’s a work accident.”
Later, Eheler admitted to a WorkSafe investigator that there were loose rocks above Sam and Arlen, and “we were going to scale that.”
“Without question . . . it was not properly scaled,” project manager Chris Dandurand admitted to Deschenes in a July 2009 interview.
In paper records and audio tapes of both the WorkSafe and RCMP investigations, there seems to be no good answer for the most puzzling question: Why would the earthworks crew override the emergency safety plan made on Feb. 21?
WCB Investigator Deschenes suggests the earthworks supervisors felt they could manage the risk: “It appears [they] thought it would not be hazardous to have the excavators work upslope of the drilling crew because the excavators would be working on terrain less steep than the terrain [involved in the previous day’s rockfall].”
However, according to Deschenes’ WCB submission, Kiewit argued that “excavator operators unwisely ‘placed themselves’ above the drilling and scaling crew.”
It was not determined whether excavators had moved the boulder that killed Sam, but “the investigation established the excavator [Jesse Taylor] did not strike the rock immediately prior to the rock’s motion,” Deschenes wrote.
Two days after Sam’s death, at the Squamish RCMP detachment, Taylor would say: “The spot we were in is a critical spot. A hairy situation.”
Taylor claimed that his understanding of the work plan was that large machine drills would be used to clear the boulder, not Sam and Arlen.
“It was a funnel coming down the mountain, so everything that runs down that mountain was going to go down that channel basically, and I knew they were down there working,” Taylor told a police interviewer. “I wasn’t sure why the plan changed [but] it wasn’t my say or my call, so we continued on.”
Kiewit appealed WCB’s $250,000 penalty, arguing WCB had not linked the boulder that killed Sam to the crew working above, or inadequate scaling of hazardous rocks.
In the latest ruling, two months ago, review officer Bruce Scott upheld the finding that Kiewit bore responsibility.
Scott said he was not persuaded that Kiewit was wilfully negligent, but “there was reckless disregard.”
“On a balance of probabilities . . . the employer’s failures and violations were a material cause of the young worker’s death regardless of what actually caused the rock to move,” Scott wrote. “It amounted to gross negligence . . . the cause of the fatal incident should have been glaringly obvious.”
Scott, in his reasoning, said the standard for “reckless disregard” is greater than simply failing to take steps to ensure worker safety. Citing a previous case, Scott says the failure must be “wanton . . . heedless . . . extreme . . . gross . . . highly irresponsible.”
Kiewit spokesman Thomas Janssen told The Sunday Province the company is preparing another appeal to the Workers’ Compensation appeal tribunal.
Janssen said Kiewit can’t comment on Scott’s ruling, or allegations about Kiewit, its managers, and Jerry Karjala. Janssen said that generally speaking, if employees have complaints with managers they can call an anonymous line to report incidents. A number of attempts by The Sunday Province to contact Karjala at his home in Montana were unsuccessful.
•••
Did Sam and Arlen Fitzpatrick feel intimidated by Jerry Karjala and feel pressured to complete a dangerous assignment? If so, they are not alone, according to documents obtained by The Sunday Province.
A Jan. 31, 2008 grievance letter to Kiewit from the Christian Labour Association of Canada — the union for Kiewit workers on the Sea to Sky Highway job — refers to numerous complaints against Karjala, specifically for allegedly breaching WCB procedures by firing workers who refused to perform unsafe tasks.
“Most of the membership’s issues are directed at supervisor Jerry Karjala,” the grievance letter says. “The union alleges that . . . his behaviour and language are abusive . . . there are multiple incidents where Mr. Karjala has verbally abused workers both in person and publicly over the Kiewit radio.”
The grievance letter “alleges that Kiewit violates [Workers’ Compensation procedures] by having the supervisor demand workers perform unsafe acts with threats of discharge if the employee fails to comply.
“The membership is upset and intimidated by the actions of Mr. Karjala,” the grievance letter says. “The Union is asking that Mr. Karjala be re-assigned to another project and the terminated workers be returned to their previous jobs with full back pay.”
The fired workers were re-hired, and Karjala was sent to Toba Inlet after the grievance was filed.
Dean Riggs, who worked the Sea to Sky job and on the Port Mann Bridge before being laid off last year, said he wasn’t surprised at Sam’s death on the Toba Inlet job. In his opinion, the surprise is that more Kiewit workers haven’t been injured, Riggs said.
According to statistics from WorkSafe BC, Kiewit operations have had 83 serious injuries from 2000 to 2011, and six fatal injuries.
“It’s all about production. The faster they get it done, the more money they make,” Riggs said. “Jerry, it was his way or the highway.”
Riggs said that when Karjala arrived on the Sea to Sky job, he shocked workers with his “tyrant”like commands. He wanted his workers and machines moving non-stop, Riggs said.
Riggs, who was on the work site safety committee, noted one Karjala firing on the Sea to Sky job that he sees as meaningful.
An excavator operator was “on a slope that he didn’t feel was safe, and Jerry was yelling and screaming. He told the fellow if he didn’t do it he would be replaced.”
Riggs says the worker was replaced that day with Jesse Taylor, the excavator who was working above Sam Fitzpatrick on Feb. 22, 2009.
“Jesse and Jerry got along famously [because] Jesse didn’t want to say no,” Riggs said. “He sent Jesse into a lot of extreme situations. Jesse was taking his life in his hands many times.”
Mike Pearson, a blasting superintendent on the Sea to Sky job, said a productive and safe work environment went downhill fast when Karjala was “parachuted” in to “kick ass” and speed up production in late 2007.
“For everyone, from the loop mechanic to the project manager, it was, “If you don’t do what I say, I will fire you,’” Pearson said.
Pearson points to an incident in February 2008 that he believes was the beginning of the end for him on the Sea to Sky job.
High above the Squamish Highway, Pearson’s hand-picked crew of steep slope experts arrived at work to find the previous crew had left a “suspended avalanche” of loose rocks on the job site. Pearson says his crew decided to play it safe and take the day off, to allow for a path to be cleared through the rock field. When Karjala learned about the decision, he came on the radio and told Pearson to fire the whole crew.
Pearson refused, he says, and Karjala fired his crew.
Pearson says he knows many of the men who worked the Toba job.
“I got phone calls from guys that used to work for me when they came out of Toba back to camp,” Pearson says. The workers, says Pearson, believed the company was asking them to do things that would eventually kill them.
•••
 |
| Brian Fitzpatrick, Sam and Arlen's dad |
Brian Fitzpatrick sits at his kitchen table in North Vancouver drinking black coffee. He says he started working in a logging camp near Lake Superior in Ontario when he was 21, but when he moved to B.C. — with steep slopes, nasty weather, big machines, massive logs — it was a whole different game.
“The loggers were a wonderfully intelligent and comical bunch, and they had a way of sneering at death,” he says. “If you were a dummy, they’d run you off. You need to have smart people around you, or you will get killed.”
He looks up from his coffee mug and frowns. “Well, I guess that brings us to Kiewit.”
“They bring up these hillbillies from the States, and they are just loudmouth bullies. It was just a minefield of death waiting to happen. It is all about making profits.”
When Kiewit appealed WCB’s $250,000 fine, Brian was even more scathing in his Dec. 2011 submission to the WCB review panel.
He wrote that the tragedy “put a horrible end to Arlen’s irreplaceable best friend, brother, and joy of life, and robbed me of ever seeing Sam’s warm smile again.” It’s almost impossible to talk to Arlen about that day — frantically shouting warnings and catching Sam’s eye at the last second, before seeing him “splattered like a bug” — Brian says.
“You can imagine what he must say to himself at night. ‘Why didn’t I see this? Why didn’t I say that? Why? Why?’” Brian says. “I would prefer it, if they both were killed, for Arlen’s sake. He’s toddling off into the sunset with no hopes and dreams. And if they both would have died, I could have consoled myself with the thought, ‘Oh well, those little rascals are still together.’”
Brian says his one drive now is to make the case that Jerry Karjala and Kiewit should be criminally prosecuted in Canada under Bill C-45.
Bill C-45, a new and rarely used law, provides means to criminally convict corporations that fail to protect the health and safety of their employees.
According to Vancouver lawyer Glen Orris — who has worked on a high-profile Bill C-45 case — to prove criminal negligence under Bill C-45 one must show an employer not only failed in the duty to ensure worker safety, but did so with “wanton . . . reckless disregard.”
WorkSafe BC did not recommend criminal charges to the Crown or refer Sam’s case to police for potential criminal negligence, spokesperson Donna Freeman said.
But Brian Fitzpatrick believes if a lawyer were to undertake the prosecution or the family were able to find a sympathetic government official to move the case forward, Sam’s death could be a blueprint for Bill C-45 prosecutions.
“I’m trying to bring some justice to my boy and other workers,” he says.
scooper@theprovince.com
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24 comments
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Score: 0
onyxescence
Mr. Magoo
You have the internet at your fingertips and can't do some research? You don't even know anything about this labor association. Fact is you don't have to be a Christian to belong to so it. And I'm sure the Sikhs and everyone else are free to form a labor association like this. BTW, the Christian Labor Association has existed since 1952 and you are just hearing about it 60 years later?
You have the internet at your fingertips and can't do some research? You don't even know anything about this labor association. Fact is you don't have to be a Christian to belong to so it. And I'm sure the Sikhs and everyone else are free to form a labor association like this. BTW, the Christian Labor Association has existed since 1952 and you are just hearing about it 60 years later?
Score: 0
Mr. Magoo
A really terrible tragedy on an extremely dangerous job site. One thing I don't understand, is this "Christian" Labor Union stuff. Is this really a positive thing for these workers? Since when do we have unions made up by religious affiliation? Does this mean we should also have Jewish, Muslim, Hindu, Sikh, etc.? Unions are supposed to be totally about equality and opportunity for all workers, irregardless of race, sex, or religion.
Score: 0
safetypro
Peter Kiewit & Sons (AKA PKS), like many other American-owned companies, is notorious for flagrantly disregarding health and safety regulations, and for putting production ahead of the welfare of its employees. And while the Criminal Code burden of 'proof beyond a reasonable doubt' is onerous, WorkSafeBC (WSBC) needs to become more aggressive in pursuing criminal charges against employers who practice 'management by intimidation' to override workers' safety concerns. However, Crown Counsel (not WSBC) ultimately decides whether or not to prosecute, based on their estimation of the likelihood of a successful conviction.
WorkSafe can't be everywhere 24/7, and there is a tendency to focus available resources on unsafe workplaces that they know about. In the meantime, workers have not only the right, but the RESPONSIBILITY to refuse unsafe work, and they should contact WSBC—anonymously, if they wish—to report unsafe conditions and work practices. It's important to keep complaining until the situation is corrected.
Kudos to The Province for a great job in covering this story. Maybe media outlets should consider setting up a 'Hotline' to report such egregious disregard for worker health and safety. I have no doubt that media attention in the form of undercover investigative journalism would result in immediate improvements on the job site.
WorkSafe can't be everywhere 24/7, and there is a tendency to focus available resources on unsafe workplaces that they know about. In the meantime, workers have not only the right, but the RESPONSIBILITY to refuse unsafe work, and they should contact WSBC—anonymously, if they wish—to report unsafe conditions and work practices. It's important to keep complaining until the situation is corrected.
Kudos to The Province for a great job in covering this story. Maybe media outlets should consider setting up a 'Hotline' to report such egregious disregard for worker health and safety. I have no doubt that media attention in the form of undercover investigative journalism would result in immediate improvements on the job site.
Score: 0
MR MANGO
It's a shame sue that German KIEWIT!!!! OR IF HE"s GONE GET ONE OF HIS BALD HEADED SON's
Score: 2
Jonathan2
Karjara shoild be publicly flogged before being deported.
Score: 2
Jonathan2
It's known far and wide as... WorkUnsafeBC....an arm, and almost as infamous, as the infamous BC Liberal Government
Scandalous!
Scandalous!
Score: 1
bewildered_in_surrey
Sadly, it is Kiewit involved...again.
As a former contractor for them and now as a Union Member (building trades member) on sites Kiewit is present, I have seen many incidents that are scary to watch unfold, from seismic upgrades on the Puttallo Bridge, Queensborough Bridge Seismic Upgrades, Deas Slough Crossing, Hope Fraser Bridge Upgrades, Surrey Skytrain extention, Rock Creek Bridge upgrades, Ballantyne Pier Cruise Ship facility to Mica Dam Penstock additions.
I have personally been asked or told to "do it" and have wittnessed workers being told to do same or risk being let go. There is no regard for safety with them. They preach it, talk about it, have you sign FLRA (start cards) before a task, but then expect you to do the dangerous work or fire you, but if something happens like getting hurt, they refer to the safety meetings and FLRA cards to say you had a right to refuse, since you never refused and got hurt, your fired!
This is their out...you had a right to refuse (but now your fired).
As a former contractor for them and now as a Union Member (building trades member) on sites Kiewit is present, I have seen many incidents that are scary to watch unfold, from seismic upgrades on the Puttallo Bridge, Queensborough Bridge Seismic Upgrades, Deas Slough Crossing, Hope Fraser Bridge Upgrades, Surrey Skytrain extention, Rock Creek Bridge upgrades, Ballantyne Pier Cruise Ship facility to Mica Dam Penstock additions.
I have personally been asked or told to "do it" and have wittnessed workers being told to do same or risk being let go. There is no regard for safety with them. They preach it, talk about it, have you sign FLRA (start cards) before a task, but then expect you to do the dangerous work or fire you, but if something happens like getting hurt, they refer to the safety meetings and FLRA cards to say you had a right to refuse, since you never refused and got hurt, your fired!
This is their out...you had a right to refuse (but now your fired).
Score: 2
Lamorial
Six workers killed while on the job and no red flag action by the WCB (or whatever it's now called).
Shameful this is.
Shameful this is.
Score: 1
e_a_f_
When the lieberals changed WCB to Work Safe B.C. it became Work dangerous B.C. Our corporate friends profit margins before worker safety. Remember workers can be replaced, profits not so much.
The workers at "worksafe b.c." are not to blame but rather senior management & the leiberals.
What happened to this man was a crime & should have been treated as such. "work safe b.c." didn't consider the deaths of the mushroom farm workers a crime & they don't think the death of any worker is a crime, regardless of how much the company is responsible. a companies best friend: the lieberals.
Kiewit will continue to fight this until the workers give up. If they were to loose they might face a private prosecution. It would be nice if the RCMP or crown prosecutors grew a set but I'm not waiting for that to happen.
Without very strong unions, workers will continue to die. Workers need to be able to refuse to work in dangerous conditions without fear of being
The workers at "worksafe b.c." are not to blame but rather senior management & the leiberals.
What happened to this man was a crime & should have been treated as such. "work safe b.c." didn't consider the deaths of the mushroom farm workers a crime & they don't think the death of any worker is a crime, regardless of how much the company is responsible. a companies best friend: the lieberals.
Kiewit will continue to fight this until the workers give up. If they were to loose they might face a private prosecution. It would be nice if the RCMP or crown prosecutors grew a set but I'm not waiting for that to happen.
Without very strong unions, workers will continue to die. Workers need to be able to refuse to work in dangerous conditions without fear of being
Score: 1
onyxescence
Kiewit spokesman Thomas Janssen told The Sunday Province the company is preparing another appeal to the Workers' Compensation appeal tribunal.
...yes, typical. 'The company' can afford endless appeals. Since Brian's statement in his submission in the appeal is quoted I assume that he can't afford a lawyer to handle the appeal and is on his own.
"WorkSafe BC did not recommend criminal charges to the Crown or refer Sam's case to police for potential criminal negligence, spokesperson Donna Freeman said."
...of course not. WCB is an insurance company set up to protect employers. All hope has to be gone before they would make such an unthinkable suggestion.
My heart goes out to Brian and Arlen; not enough to deal with such a tragedy like this but you have to deal with this inhumane disgusting organization.
...yes, typical. 'The company' can afford endless appeals. Since Brian's statement in his submission in the appeal is quoted I assume that he can't afford a lawyer to handle the appeal and is on his own.
"WorkSafe BC did not recommend criminal charges to the Crown or refer Sam's case to police for potential criminal negligence, spokesperson Donna Freeman said."
...of course not. WCB is an insurance company set up to protect employers. All hope has to be gone before they would make such an unthinkable suggestion.
My heart goes out to Brian and Arlen; not enough to deal with such a tragedy like this but you have to deal with this inhumane disgusting organization.
Score: 1
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Score: 2
coaster
To whom it may concern
The liberals under Gordon Campbell dismantled the WCB and turned it into self governing Work safe. In doing this it down loaded responsibilty on the companies and employees, without the over sight of WCB protecting the workings any goes. Just look what happened at the mushroom farm, this was also the case with ombudsman, and legal aid. I work in the film industry and asked a Work safe officer why I never saw an inspection on film sites , his response was he was told HANDS OFF the film industry. Who will look out for the worker not the liberal government.
The liberals under Gordon Campbell dismantled the WCB and turned it into self governing Work safe. In doing this it down loaded responsibilty on the companies and employees, without the over sight of WCB protecting the workings any goes. Just look what happened at the mushroom farm, this was also the case with ombudsman, and legal aid. I work in the film industry and asked a Work safe officer why I never saw an inspection on film sites , his response was he was told HANDS OFF the film industry. Who will look out for the worker not the liberal government.
Score: 3
outsidelookingin
Very disturbing commentary on a company that should be an international leader in workplace safety. Crown counsel should be stepping up before public pressure forces them to. I know of many other incidents where Worksafe investigators and officers have poured hundreds of hours into an investigation, coming up with compelling evidence for a prosecution, only to have it rejected by Crown. The court system seems to only want to take on "can't lose" cases. Not right.
Score: 3
i_m right13
I worked with a guy who worked on the Port Mann as a condrete finisher. He told me that during a safety meeting he requested that they(the concrete finishers) be given more dust mask filters as thefilters need to be changed regularly. The next day his supervisor admonished him for ' going behind my back' in his request and gave him a week off. He explained to the supervisor that it wasn't fair and that he had a family to feed. To this the super responded"I don't care if your family starves to death'. Telling my co-worker that I hoped to get hired there is what precipitated this conversation. Needless to say I stopped trying to get hired there after that. It appears to me that even though they had put in place a stop work order if people were working above. It only related to expensive equipment like the drill that was damaged the day before.
Score: 4
Joe Again
Bigbear7..
Thank you for your honesty....
Sadly, everything you say is true.
Thank you for your honesty....
Sadly, everything you say is true.
Score: 0
Name withheld
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Score: 8
Name withheld
This comment has been removed because it contains material which was deemed inappropriate.
Score: 2
Name withheld
This comment has been removed because it contains material which was deemed inappropriate.
Score: 7
KerriS
This is every family's nightmare. Thank God that the co-workers were there to hold back Arlen from having to see his brother. If there's any consolation in this, is that Sam was totally oblivious to what was coming and that it was a quick death.
There needs to be more personal liability for tyrants in the workplace (not just the employer) - what is the incentive for them to change their behaviours? Perhaps enough negative publicity will shame Karjala enough so that he can be a better employer.
May you forever rest in peace Sam.
There needs to be more personal liability for tyrants in the workplace (not just the employer) - what is the incentive for them to change their behaviours? Perhaps enough negative publicity will shame Karjala enough so that he can be a better employer.
May you forever rest in peace Sam.
Score: 9
anon474451889
Hi I worked for kiewit portmann project unsafe is a light way to say the least.
Work safe should check there jobs out at night and weekend.
THEY NO WORKSAFE BC IS AFFRAID OF THE DARK HINT HINT.
Work safe should check there jobs out at night and weekend.
THEY NO WORKSAFE BC IS AFFRAID OF THE DARK HINT HINT.
Score: 3
AB-Ambulance-EMT
BT3 --- Why does everyone forget about Ambulance workers? Its always "police and fire"...
I grew up in Port Alberni, moved to AB is 2006. When Jo-Anne and Ivan died back a few OCT ago, I flew in from AB. I marched through Tofino on that cold wet OCT day.
That aside, as many as there have been union bashers around as of late, (in reference to some online comments about AC, and BCTF) Unions do make safer work environments. Which initial was one of the main reasons why unions were started in the first place, to improve working conditions.
Clearly this company had higher values on production then safety. I am sure there are many more stories of people who simply kept their safety concerns to themselves over risking getting fired in a bad economy.
A union very well may have saved lives on this job site. People could have refused and spoke up about unsafe work with out risking getting fired.
I grew up in Port Alberni, moved to AB is 2006. When Jo-Anne and Ivan died back a few OCT ago, I flew in from AB. I marched through Tofino on that cold wet OCT day.
That aside, as many as there have been union bashers around as of late, (in reference to some online comments about AC, and BCTF) Unions do make safer work environments. Which initial was one of the main reasons why unions were started in the first place, to improve working conditions.
Clearly this company had higher values on production then safety. I am sure there are many more stories of people who simply kept their safety concerns to themselves over risking getting fired in a bad economy.
A union very well may have saved lives on this job site. People could have refused and spoke up about unsafe work with out risking getting fired.
Score: 7
BT3
Statistics show it is more dangerous to work for this large non-union company than to be in Ahganistan, and the only thing Philip Hochstein & the Liberals care about is that wages remain low. This disregard for the safety of workers all began with the Westray mines disaster, when companies felt they can just walk away from all blame. Maybe workers should have a parade everytime one dies, it seems to work for the hero industries like policeman and fireman.
Score: 5
steve60
Unlike alot of people who post on this site I have alot of respect for Worksafe BC officers in the field. They have large case loads and have to pick sites to inspect where they think there might be problems. What I do have a problem with is the upper management in Worksafe BC. Two cases in the province this week where in my opinion (30 years as a OH&S Manager) law 271 refered to as Bill C-45 should have been used. The mushroom farm incident and this one. If ever there were cases for " reckless disregard" these would be it. There is a MAJOR problem in the industry with bringing American Supervisors in with strictly cost/ production based thought processes and we have our own home grown ones. "Bill C-45" law 271 is not new, it has been around for a couple of decades since the Westray coal mine disaster and until the upper management at Worksafe BC and the crown attorneys office start using it these type of needless work place deaths will just keep on happening.
Score: 4
Name withheld
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