This is an updated versionfrom a previous story that was published Dec. 15
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.
TheforemanDave Green was also charged with criminal negligenceandmanslaughterbut was acquitted ofbothcharges.After hearing the judge’s ruling in court on Dec. 11,Greenwas seen thanking his counseland also crownlawyers butleft refusing anycomment to the press.
The case focuses on an incident that occurredin October 2012when a Burnaby city sewer projectinvolving the digging of a trench caused aneighbouringwall tocollapse whilethetwo workers were in theexcavated area.
In earlier testimonyduringthe lengthy court hearing, which was spaced over parts of2025, the courtheard theretaining wall had beenbuilt more than30years earlier by theCity ofBurnabyfollowing aneighbour’s1977complaintabout his property sliding into the lane.Investigation after thedeathfound the city had built the wall with no footings and notie-backs.
WorkSafeBCseniorstructural and civil engineer Dr. MehrdadHamiditestified at the hearing.
Justice Michael Brundrett said it was Dr. Hamidi’s view employers and supervisors must put worker safetyfirst 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.2certificate, Dr. Hamidinoted 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 instructionsrenderedthe certificate incomplete,” Justice Brundrett said.
As well, there was ambiguity in thecertificate’sconditionsregardingthe 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 interpretedconditiontwoaspermittingthem to trench near any improvement or structure,as long astheymaintaineda minimum distance of two feet,” the justice reasoned.
Dr.Hamidistated he had never heard any engineer refer to any structure as a load. Hestated“heavy loads”commonlyrefersto machinery in an excavation.
Dr. Hamidistated 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. Hamidisuggested 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 engineerdoesn’tprovide clear instructions,then a second engineer should be brought intoassess the site and give directions. The supervisor should record the issue and steps taken to addressitand the process should be documented as a reference.
“In this case, neither Mr. Green nor any other supervisor took such action on thisproject,”the justice said.
The certificate was given to Green at the siteby geotechnical engineer EdwardYipand the justicesaid Green had no formal training in reviewing such a document,as it was usually done in conjunction withmoresenior staff.
“Mr. Green asserted that he understood the engineering certificate to require a 0.6metresetback 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 haddemonstratedunprofessional conduct by preparing an inadequate geotechnical inspection report whichfailed tonote structures along the trench pathand safety measures to take during the excavation.Yip agreed to aconsent 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 theBCSCruling, the judge ruled while Green mademistakes,they did not support the manslaughteror criminal negligence charges.
The justicesaid the company had an onus to ensurethe wall was property supported and that those working in the areareceivedpropersafetytraining;both areas he found lackingwhich amounted to a disregard for worker safety.
Corporateliability under s. 22.1 of the Criminal Code makescompanies 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 – pleadingthis was what was done before isno 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 commenton an appealuntil there is the opportunity to review the judge’swritten reasons for judgmentin relationto
Green.
On Jan.7, the crownand defense will meet todeterminea sentencinghearingdate for the company.
“I am satisfied with the charges against thecompany,” saidCheyannaKamahkoostayo, sisterof Caron, interviewed after the court decision wasrendered. “The decision will save lives.”
Kamahkoostayoexpressed 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.”
Kamahkoostayosaid an emotional Green, who was testifying at the court hearing earlier that year, had approached her and expressed his remorsesayinghe was “so sorryyour brother died.”
She said she felt there should have been more accountability for Green’s role.
“He had the chance to stopwork,” 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 guiltypleaand a second had the charges stayed.
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