Graham Construction a ‘missing link’ in Children’s Hospital worksite death trial, defence lawyer says

The question of why Graham Construction, the main contractor on the Jim Pattison Children’s Hospital in Saskatoon, isn’t implicated in the death of a man who died at the construction site three years ago came up Wednesday at the trial of the two companies that are charged in the man’s death.

Eric Ndayishimiye, 21, was labouring at the hospital site on July 21, 2016, when an approximately-19-foot-high table cart, or construction lift, fell and struck him, court has heard. He died in hospital shortly after.

Banff Constructors, a subcontractor to Graham Construction, and Pilosio Canada, an equipment supplier to Graham Construction, are each charged under separate sections of the Saskatchewan Employment Act: 

  • Banff is charged with failing to ensure the use, handling and transport of equipment was done “in a manner that protects the health and safety of workers,” as well as not providing instruction, training and supervision necessary to protect Ndayishimiye’s health. 
  • Pilosio is charged with failing to ensure the equipment was safe when used with instructions.

According to the agreed statement of facts, Pilosio Canada supplied the construction lift directly to Graham Construction, while Ndayishimiye was an employee of Banff Constructors.

Eric Ndayishimiye was 21 and wanted to be an actor, his family has previously said. (CBC Archive)

‘We have this missing link’

The chain-of-possession for the lift was seized upon Wednesday by Jonathan Frustaglio, the lawyer for Pilosio Canada, as he argued that Pilosio Canada and Banff Constructors should be tried separately.

“We’re still a little bit perplexed as to why Graham has not been implicated in this incident, why Graham is not considered a contractor, why Graham is not considered an employee, or at the very least why Graham is not even considered a supplier of the equipment in light of the fact that Pilosio gave the equipment to Graham and Graham then in turn…. provided that equipment to Banff Constructors,” Frustaglio said.

Graham Construction gave Banff Constructors the construction lift “without the knowledge or consent of Pilosio,” Frustaglio said.

“We have this missing link that’s not involved here,” Frustaglio said, adding that Graham Construction’s absence from the trial “creates an issue between all of the parties.” 

“I was wondering too why Graham wasn’t on here, quite frankly,” Judge Brent Klause said.

‘Banff is the employer in this case’

Buffy Rodgers, the Crown lawyer on the case, previously said, “Banff is the employer in this case. The Crown has pursued charges against the supplier of the equipment and the employer of the workers involved.”

CBC News has reached out to Graham Construction for comment. The company said it would provide a comment Thursday.

Construction workers at the Jim Pattison Children’s Hospital site in July 2016 look as a forensic officer photographs the scene where Eric Ndayishimiye was injured by a falling construction lift, seen upturned here. The hammer Ndayishimiye was holding can also be seen. (Saskatoon Police Service/court exhibit)

Saskatchewan has a maximum penalty of up to $1.5 million for incidents causing the death of a worker.

“This matter is quite important, with very serious ramifications for both co-accused,” Frustaglio said, adding that the his client also potentially faces a 40 per cent victim surcharge.

Frustaglio cited the different charges facing each co-accused as another reason for splitting up the court process. 

Frustaglio first flagged his intent to apply for two trials Tuesday, after the lawyer for Banff Constructors signalled his intent to call an expert witness who would be “damaging” to Pilosio.

The trial, which is expected to last three weeks, will continue Thursday with testimony from a Pilosio Canada sales representative.

Klause decided Wednesday that the Crown would present the rest of its evidence while he mulls over Frustaglio’s request for two trials. 

Should that request be granted, the Crown evidence in the first case would simply be “adopted” for the second trial.