Judge denies acquittal application for Sask. workplace death; trial scheduled for March

Eric Ndayishimiye (Facebook)

SASKATOON — A provincial court judge has denied a construction supplier's application for an acquittal and an application to be tried separately from a second company charged with different workplace offences related to the same incident.

On July 21, 2016, 21-year-old Eric Ndayishimiye was killed after a table cart toppled over and crushed his head, neck and chest while he was working at the Jim Pattison Children's Hospital construction site.

Banff Constructors Ltd. is facing a charge under Occupational Health and Safety of being an employer that failed to make arrangements for the use, handling and transport of trolleys in a manner that protects the health and safety of workers. The company faces a second charge under the act relating to not giving instruction, training and supervision necessary to protect employees.

Pilosio Canada Inc., is charged under the Saskatchewan Employment Act with being a supplier that failed to ensure its equipment was safe.

On Wednesday, lawyers representing Pilosio argued the Crown had not provided enough evidence to prove Pilosio's table cart was unsafe when used in accordance with safety instruction the supplier gave to Graham Construction. Pilosio's lawyer argued that when it rented the table cart to Graham Construction, it did not authorize third parties, such as Banff Constructors, to use the table cart.

On Thursday, Judge Brent Klause denied the request, saying the Crown did provide enough evidence to meet the threshold, and the request from the defence "goes well beyond the limited amount of weighing I'm allowed to do.

"I'm therefore satisfied the Crown has established some evidence on each of the essential elements of the charge and I deny the motion for a directed verdict," Klause told the courtroom.

Application for severance

Pilosio and Banff Constructors also submitted application to be tried separately rather than at the same time in the same trial.

Lawyers representing Banff Constructors said they were bringing in an expert witness. Pilosio argued the expert witness would present evidence that would be prejudicial and impact Pilosio's defence.

Crown prosecutor Buffy Rodgers argued that in Occupational Health and Safety cases and in this particular one, there are overlapping responsibilities.

"Banff as the employer pointing the finger at Pilosio as the supplier does not absolve them of their obligation as the employer," she said. "The Crown would submit neither Banff or Pilosio has demonstrated how a joint trial would result in prejudice to either defendant."

Klause denied the application from Banff Constructors and Pilosio to be tried separately. The trial is scheduled to begin in March.