Family of Winnipeg woman run over by construction vehicle feels like court is 'almost laughing at us'
$25K fine for demolition company in fatal 2019 collision not enough, family says
The son of a Winnipeg woman who died two years ago after being run over by a construction truck says financial fines won't bring justice.
"It's not fair," said Oliver Muñoz Orellana, whose mother, Tamara Orellana, was killed. He lives in Chile with his wife, Andrea Royo, and their almost two-year-old daughter, Mathilda Muñoz Royo.
He spoke in Spanish to CBC in an interview last Saturday, while his wife translated to English.
"We feel that they are almost laughing at us," he said. "They shouldn't receive just a fine but maybe … a punishment of some sort."
His 57-year-old mother was walking across the parking lot at Garden City Shopping Centre on April 1, 2019, when she was hit by a truck driven by a Bulldog Demolition and Excavation employee.
The dump truck was removing debris from the southwest corner of the shopping centre during a renovation. An excavator operator signalled for it to reverse and Orellana was hit, a news release from the province said.
She died at the scene.
In a provincial court hearing on June 10, Bulldog Demolition owner Eric Fleury pleaded guilty to one count of failing to make sure the public is not at risk in connection with the workplace under the Workplace Health and Safety Act. Other charges were stayed by the Crown.
The company must now pay a $20,000 fine, as well as an additional $5,000 for court costs.
The driver pleaded guilty in provincial court Tuesday to careless driving under the Highway Traffic Act and has to pay a fine of $1,500 in nine months.
'Nothing makes sense': company owner
"This is a really unique situation, because we don't have direct evidence about how she [Orellana] wound up coming into contact with the truck," Crown attorney Adam Gingera told the court in June.
Surveillance footage shows her walking from a transit bus at Kingsbury Avenue and McPhillips Street toward the mall entrance, Gingera said.
Orellana approached a four-way intersection near the construction site, but neither witnesses nor surveillance cameras could see exactly what happened next, the lawyer said.
When the driver was given the OK by the excavator operator, she pulled forward, honked two to five times, then backed up, court was told.
The truck hit Orellana when it pulled forward, then ran her over a second time when it backed up. Her injuries were described as "catastrophic" in court.
Investigators found the driver had all the right licensing and training to operate the dump truck, and had been doing so for two months. But provincial regulations ask that specific safety rules be written up if a work site could interact with the public, said Gingera, and there were none in this instance.
As well, court heard the flag person was on break at the time, and the excavator operator was the one signalling to the dump truck driver because the company was short-staffed.
Fleury told court it's common practice to have the excavator operator do this job.
Gingera said the excavator couldn't see all sides of the truck — including where Orellana came into contact with the vehicle — but this was "not a deliberate oversight."
"It was an area where more could have been done," he said.
Provincial court Judge Sandy Chapman accepted a joint recommendation to determine the fine for the company. Gingera said that fine amount took into consideration the fact that the company is in debt.
"It was a freak accident, like I've said from the beginning," Fleury told court in June.
"We've been trying to figure it out since Day 1. Nothing makes sense."
Fleury said after Orellana's death, his company put people on both sides of moving equipment to prevent it from happening again.
In 2019, the province told CBC News that the company had complied with an improvement order that required them to formalize safety procedures in writing and ensure they're implemented.
"I just want to say sorry. I can't do anything else," Fleury said in court.
The Crown didn't put forward any previous record of negligence. Fleury has three years to pay the fines.
Fleury declined an interview with CBC News.
Family still wants answers
Muñoz Orellana, who was in Chile, was able to be present for the virtual court hearing on June 10. He said in his interview with CBC he was disappointed with the outcome and is now figuring out what next steps he can take.
"In this moment, I am actually looking for a legal representative that can help me understand all of this, and see how I can actually obtain justice," he said.
In a text message to CBC following the driver's guilty plea on Tuesday, he said that outcome was a disappointment too.
He believes the province is protecting its own safety laws.
"Regardless of what money they can fine the company, the feeling we have … is that my mom isn't being represented by anyone, and her death is somewhat left without punishment."
A provincial spokesperson said in an email that investigations focus "on improving legislative compliance in order to reduce workplace facilities, serious injuries and illnesses.
"Workplace Safety and Health enforcement targets high-risk hazards and sectors, as well as repeated or willful non-compliance."
'Teach them a lesson'
Though the family might be looking for a harsher punishment, a Winnipeg labour lawyer says Manitoba's Workplace Health and Safety Act isn't designed to shut businesses down after first offences.
"Their goal isn't to put small businesses out of business. It's to teach them a lesson," said Benjamin Hecht, managing partner at Pitblado Law in Winnipeg, whose practice focuses on labour and employment law.
Manitoba's legislation states the court can send someone to prison for an incident, but Hecht said there would need to be signs of gross negligence.
The act does give court the power to issue a fine that could potentially be too high for smaller businesses to pay. As of May, the maximum fine for first offenders was changed to $500,000.
Maximum fines are uncommon, with one of the highest fines in recent history a $90,000 penalty against the City of Winnipeg, Hecht said.
The legislation doesn't aim to "put companies out of business, because you're taking away jobs for employees," he said. "It's no solace to the family, but we just want [the company] to know that they better not appear before me again."
Muñoz Orellana hopes the safety rules become stricter for construction companies in Manitoba to prevent anything like this from happening again.
"I think that the law is too weak for people who kill other people through a company's negligence," he said. "Maybe this could be something that my mom's death could contribute to improve."
Orellana moved to Canada 13 years ago from Santiago, Chile. Muñoz Orellana's daughter, Mathilda, was born after his mother's death.
"When she left for Canada, she was really happy because she knew she was going to have a grandchild," he said.
"It's so sad that she's not here because she couldn't get to know her granddaughter, and my daughter couldn't get to know her grandma.
"She was always joyful. She was always working. She always had plans for everything. She's my mom. I miss her a lot."
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