Trial stemming from Children's Hospital construction death hears lift fell and hit Eric Ndayishimiye

The way forward got a little murky Tuesday in the trial of two companies implicated in the death of a man who was fatally injured at a Saskatoon construction site three years ago.

Banff Constructors Ltd. and supplier Pilosio Canada Inc., both based in Calgary, are charged with separate Saskatchewan provincial offences in the death of Eric Ndayishimiye, a 21-year-old employee of Banff Constructors.

Ndayishimiye was working at the construction site of Saskatoon's new Jim Pattison Children's Hospital on July 21, 2016, when an approximately-19-foot-high table cart, or construction lift, fell and struck him, court has heard. 

Ndayishimiye was pronounced dead within minutes of being brought to hospital. He suffered "multiple blunt force injuries to the chest, neck and head," according to the agreed statement of facts.

Saskatoon Police Service/court exhibit

Banff Constructors is a subcontractor on the hospital project (which is overseen by main contractor Graham Construction) and is charged under the Saskatchewan Employment Act with failing to ensure the use, handling and transport of equipment was done, "in a manner that protects the health and safety of workers."

Banff Constructors is also charged with not providing instruction, training and supervision necessary to protect Ndayishimiye's health. Ndayishimiye had only been on the job for six months.

Asked why Graham Construction is not also named in the case, Crown prosecutor Buffy Rodgers 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."

Pilosio Canada supplied Graham Construction with the construction lift and is charged with failing to ensure the equipment was safe when used with instructions.

"We're 100 per cent not at fault," Joey Yusefawich of Pilosio previously told CBC News. 

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Potential delay to trial 

The judge-only trial began Monday with a voir dire hearing — a process for Judge Brent Klause to rule on the admissibility of Crown evidence. The whole trial, including the voir dire, is expected to last three weeks. 

The Crown expects to call 13 witnesses while the lawyer for Banff Constructors, David Myrol, confirmed in court Tuesday that he plans to call an engineering professor as an expert witness. 

Myrol said the professor's evidence would relate to the construction lift and that it would be "damaging" to Pilosio Canada.

Jonathan Frustaglio, the lawyer for Pilosio Canada, asked Klause twice for an adjournment Tuesday so that he could apply to have the case split in two, with Pilosio Canada and Banff Construction tried under two separate court processes.

Frustaglio said Myrol's plan "puts Pelosi in a precarious position given that trial has already started and we just received the report [of the expert witness]," said Frustaglio. "We believe it's going to be prejudicial to our defence."

Judge leery of delays

Klause was initially reluctant to halt the voir dire, which still needs to hear from 10 of the Crown's 13 witnesses before the trial proper begins.

"This has been dragging on for three years now," Klause said. "The family of the deceased is waiting in the wings, I assume."

After a second call for adjournment — during which Frustaglio pointed out that it's only been a year and a half since the companies were charged — Klause granted the adjournment.

The voir dire is scheduled to resume at 2 p.m. CST Wednesday.

Whether Klause immediately rules on splitting the case in two, or reserves the ruling for later, is unclear.

Before Tuesday's adjournment, court heard during the voir dire from the Crown's third witness, Sgt. Lorne Keen, the Saskatoon police officer who photographed the construction scene on the day of Ndayishimiye's death. 

Keen said he came upon an  construction lift on its side that, unlike similar-looking lifts at the scene, appeared to be missing two pins meant to stabilize the lift.

Don Somers/CBC

Under cross-examination by Frustaglio, Keen said he was not an expert in such equipment.