Firm charged in construction fatality wants charges dropped

Lawyers for one of the companies charged in connection with the death of a worker at the construction site of Saskatchewan’s children’s hospital has asked for the charges to be dismissed.

Eric Ndayishimiye, 21, was working on the ground floor of the building site in Saskatoon when a table cart fell and crushed him on July 21, 2016.

The construction subcontractor, Alberta-based Banff Constructors Ltd., and the cart supplier, Pilosio Canada Inc., are accused under the Occupational Health and Safety Act of being liable in Ndayishimiye’s death — Banff for failing to provide proper training and arranging for the safe use of trolleys, and Pilosio for failing to ensure the safety of supplied equipment when used as instructed.

Lawyer Jonathan Frustaglio, who represents Pilosio, applied for a directed verdict in Saskatoon provincial court on Wednesday, arguing that evidence provided by the Crown did not satisfy the charges against his client in that it doesn’t prove that the cart is unsafe when used according to the instructions.

In addition, Pilosio’s duty to ensure the cart was safe when used properly only extended to Graham Construction, the primary contractor at the site, and not to subcontractor Banff, Frustaglio said.

He added that Pilosio was not aware that Graham had passed the cart on to Banff to begin with.

The man operating the cart at the time of the accident did so by himself, despite the fact the cart is supposed to be handled by two people, court heard.

“How could it be reasonable to hold Pilosio responsible for something that it was unaware of, and for the acts of a party that were in contravention of his own employer’s instructions?”

Frustalgio said the cart was no longer Pilosio’s equipment at the time of the incident, as it had been modified on site to extend beyond its maximum recommended height.

Judge Brent Klause’s decision on the matter and on an application for severance between the two parties is reserved for Thursday morning.

David Myrol, a lawyer for Banff, said that in respect to the application, there is “a propensity in this case for Pilosio to start prosecuting Banff, and vice versa.”