The charges are possible under the rarely used law passed in 2004 to establish criminal liability of corporations for workplace deaths and injuries. It’s called the Westray law
Vancouver Sun | Jan 20, 2025 | By Susan Lazaruk
More than 12 years after a pipe layer was crushed to death by a collapsing trench wall on a Burnaby city sewer project, the foreman on that job is being tried for manslaughter.
If convicted, David John Green faces a jail or prison sentence. His employer, J. Cote and Son Excavating of Langley, which is facing criminal negligence charges causing bodily harm and death in the trial, could be fined.
A second pipe layer, Thomas Richer, who was seriously injured in the October 2012 collapse, said he brought concerns to Green about a widening crack he noticed in the retaining wall on that job, according to the opening statement by prosecutor Louisa Winn in B.C. Supreme Court.
Richer also noticed the soil was “changing to a sandier texture and the ground was beginning to fall away, sloughing,” said Winn.
But the work wasn’t stopped and Richer was told they “just needed to keep going to get past this,” Winn told court.
About 10 minutes later, Jeff Caron, 28, was pinned against the trench wall by the collapsed retaining wall, and he died of his injuries.
“The wall collapsed … and the collapsed wall is the reason we are here today,” Winn told the B.C. Supreme Court trial.
Other employees tried to use machinery to remove the collapsed wall. Richer, who wasn’t as close to the wall, managed to get out. A third employee, who had been in the trench before the collapse to retrieve a tool, escaped being a victim by minutes, court heard.
Richer, the first prosecution witness, testified for the first of four scheduled days on the stand Monday, recounting his concerns about safety issues on previous projects he had worked as an employee for J. Cote before the fatal accident.
Richer said on a previous job for J. Cote on Pitt Lake Road — when Green was the foreman, a J. Cote employee he knew only as Mark was the backhoe operator, and he and Caron were the pipe layers — he refused to go into the excavated trench because he said it looked to him to be unsafe because it wasn’t properly shored. He said Green went in with Caron.
At another previous job, Richer said Green asked him to use a backhoe to lift up what he called a power line so Mark, the operator, could drive under the line to move some materials.
“In my experience, you don’t play with the hydro wires,” he said. “You get the hydro people here and you confirm it was not a live wire.”
At another job, Richer said he refused an order by Green to cut an asbestos pipe because he didn’t have proper safety equipment or water to contain the dust. He told court Green picked up the saw and cut the pipe without proper equipment and he had concerns about he and others inhaling the asbestos dust that flew into the air.
Richer also said his crew did not receive safety orientations before the job, nor did they do weekly “tool box” safety sessions he said he had participated in with his previous employers, even when he asked Green about them.
“He (Green) laughed at me when I brought them up. I talked to Mr. Green about it and he said, ‘We’re not building houses, Tommy, we’re building roads.’ ”
The trial is scheduled for 29 days and lawyers for Green and J. Cote will have a chance to cross-examine Richer.
The criminal charges are possible under a rarely used law passed in 2004 to establish criminal liability of corporations for workplace deaths and injuries. It’s referred to as the Westray law after a 1992 explosion in the Westray coal mine in Nova Scotia. Despite employees, the union and government inspectors raising safety concerns before the deadly blast there, a police investigation and a public inquiry, no one was held accountable for the deaths.
It’s only the third time the law has been used in a prosecution in B.C., according to Canadian Occupational Safety’s online magazine.
In an article Monday on the trial, it said the law was designed to target negligence at all levels of an organization, from front-line supervisors to corporate executives, and is being closely watched by workplace safety professionals. It said it “raises questions about the role of engineering oversight in construction safety and the division of responsibility among supervisors, engineers and corporate leadership.”
The company’s owner, James (Jamie) Cote, is represented by his own lawyer and sat next to Green in the lawyers’ area of the courtroom.
J. Cote and Son Excavating was the primary contractor on the job and had been brought on by Vector Engineering, the primary consultant on the project, court heard.
Burnaby RCMP laid the charges in 2023, and WorkSafeBC had earlier prepared a report on the accident.