Journal of Commerce | Jean Sorensen | December 24, 2025
A BC Supreme Court (BCSC) ruling has found J. Cote & Son Excavating Ltd. guilty of two counts of criminal negligence in a 13-year-old workplace incident that resulted in the trench death of pipelayer Jeffrey Caron, 28, and severe injury to fellow employee Thomas Richer when a retaining wall fell onto them.
The foreman Dave Green was also charged with criminal negligence and manslaughter but was acquitted of both charges. After hearing the judge’s ruling in court on Dec. 11, Green was seen thanking his counsel and also crown lawyers but left refusing any comment to the press.
The case focuses on an incident that occurred in October 2012 when a Burnaby city sewer project involving the digging of a trench caused a neighbouring wall to collapse while the two workers were in the excavated area.
In earlier testimony during the lengthy court hearing, which was spaced over parts of 2025, the court heard the retaining wall had been built more than 30 years earlier by the City of Burnaby following a neighbour’s 1977 complaint about his property sliding into the lane. Investigation after the death found the city had built the wall with no footings and no tie-backs.
WorkSafeBC senior structural and civil engineer Dr. Mehrdad Hamidi testified at the hearing.
Justice Michael Brundrett said it was Dr. Hamidi’s view employers and supervisors must put worker safety first by asking the geotechnical engineer to put supplemental verbal instructions in clear writing on the inspection certificate issued as excavation begins.
“With respect to the Oct. 2 certificate, Dr. Hamidi noted that the certificate did not refer to the retaining wall as part of the certification. He opined that the absence of any reference to adjacent structures in the instructions rendered the certificate incomplete,” Justice Brundrett said.
As well, there was ambiguity in the certificate’s conditions regarding the term heavy load, which the geotechnical engineer construed as machinery or vibrations.
“Mr. (Jamie) Cote and Mr. Green, however, understood the reference to ‘heavy loads’ as referring to any load. In other words, they interpreted condition two as permitting them to trench near any improvement or structure, as long as they maintained a minimum distance of two feet,” the justice reasoned.
Dr. Hamidi stated he had never heard any engineer refer to any structure as a load. He stated “heavy loads” commonly refers to machinery in an excavation.
Dr. Hamidi stated in one of two reports (one for the RCMP investigation) he prepared after the death, that when faced with a geotechnical engineer’s instruction that does not account for the presence of adjacent structures in the planned trench area, the supervisor should stop work and implement safety measures, Justice Brundrett wrote.
“Dr. Hamidi suggested that the supervisor should contact the geotechnical engineer to point out the oversight and request an updated instruction that specifically considers the adjacent structures. This clarified guidance must include the steps needed to secure the excavation for safe entry and ongoing work by the crew.”
If the engineer doesn’t provide clear instructions, then a second engineer should be brought in to assess the site and give directions. The supervisor should record the issue and steps taken to address it and the process should be documented as a reference.
“In this case, neither Mr. Green nor any other supervisor took such action on this project,” the justice said.
The certificate was given to Green at the site by geotechnical engineer Edward Yip and the justice said Green had no formal training in reviewing such a document, as it was usually done in conjunction with more senior staff.
“Mr. Green asserted that he understood the engineering certificate to require a 0.6 metre setback from ‘heavy loads’ adjacent to the excavation and said that, based on his past work with Mr. Yip, he interpreted this term broadly to include retaining walls and similar structures,” the justice reasoned.
However, Green never had a specific conversation with Yip to confirm what “load” meant.
In 2023, Yip admitted at a disciplinary hearing before the Engineers and Geoscientists that he had demonstrated unprofessional conduct by preparing an inadequate geotechnical inspection report which failed to note structures along the trench path and safety measures to take during the excavation. Yip agreed to a consent order cancelling his registration with the association and agreed to pay a $10,000 fine and $5,000 toward the association’s legal costs.
In the BCSC ruling, the judge ruled while Green made mistakes, they did not support the manslaughter or criminal negligence charges.
The justice said the company had an onus to ensure the wall was property supported and that those working in the area received proper safety training; both areas he found lacking which amounted to a disregard for worker safety.
Corporate liability under s. 22.1 of the Criminal Code makes companies liable for the collective failure of their senior officers.
“I find that much greater care and attention to the prevention of foreseeable hazards was called for when J. Cote engaged in high-risk activity that posed an obvious and significant threat to worker safety,” the justice reasoned. “In short, the appropriate standard of care here must recognize the need for increased vigilance and caution because of the high-risk nature of trenching at least eight feet down near obvious, adjacent hazards of unknown stability—a risk that J. Cote itself created.”
Justice Brundrett said while the company relied on Yip – whom it had worked with before – pleading this was what was done before is no longer good enough.
“‘We’ve always done it this way’ does not, by itself, establish that reasonable steps are in place to prevent bodily harm in high-risk workplaces, even if such procedures have not yet resulted in harm to workers,” the justice said, adding such subjectivity negates having a uniform legal standard.
“A reasonable company would have used shoring equipment to protect its workers and would have had safety procedures in place to ensure that potential hazards, such as the retaining wall, were identified.”
“I find, beyond a reasonable doubt, based on the party provisions in s. 22.1(a) of the Code, that J. Cote was a party to the offence by virtue of the collective actions and omissions of its representatives, being primarily Mr. Green but also Mr. (Gregg) Trigg (site superintendent) and Mr. Cote. Under s. 22.1(b), J. Cote bears responsibility for the collective failure of its senior officers to foresee and prevent the collapse of the retaining wall,” the justice said.
Louisa Winn, lead crown prosecutor, said the crown is reserving comment on an appeal until there is the opportunity to review the judge’s written reasons for judgment in relation to
Green.
On Jan. 7, the crown and defense will meet to determine a sentencing hearing date for the company.
“I am satisfied with the charges against the company,” said Cheyanna Kamahkoostayo, sister of Caron, interviewed after the court decision was rendered. “The decision will save lives.”
Kamahkoostayo expressed disappointment with the company for its handling of her brother’s death. She said the company sent her brother home “in a coffin” and there was no expression of condolences from the company to the family.
“There was no acknowledgment of any kind.”
Kamahkoostayo said an emotional Green, who was testifying at the court hearing earlier that year, had approached her and expressed his remorse saying he was “so sorry your brother died.”
She said she felt there should have been more accountability for Green’s role.
“He had the chance to stop work,” she said.
It is only the third workplace case of its kind in B.C. where a construction company and personnel have been charged with criminal negligence.
It is the first to have gone to a full trial, as one had entered a guilty plea and a second had the charges stayed.