A public fatality inquiry into the deaths of temporary foreign workers Genbao Ge and Hongliang Lui will not be allowed to explore any circumstances around the 2007 accident beyond how one of the men was transported to hospital.
The decision is the result of a court action brought by Canadian Natural Resources Ltd., which owns the site where the men were killed and hired the subcontractor they were working for.
The decision comes following a teleconference involving lawyers for CNRL and Alberta Justice with Judge J. R. Jacques of the Alberta provincial court in Fort McMurray.
CBC News obtained a court order to get a transcript of the Jan. 22 hearing, where CNRL argued that there should be no public fatality inquiry into the deaths.
"This was our last chance to get information, and frankly to get justice," said Alberta Federation of Labour president Gil McGowan. "To say that I'm frustrated by big oil companies winning again would be an understatement. I say that I'm actually outraged."
Limit set on inquiry
The Chinese temporary foreign workers were killed in a 2007 workplace accident at CNRL's Horizon oilsands site in northern Alberta. Although unsuccessful in derailing the hearing entirely, CNRL managed to limit the scope to whether an air ambulance should have been dispatched to take Ge to hospital.
"There was a thorough and comprehensive investigation conducted by OHS [Occupational Health and Safety] officers which resulted in a formal prosecution," said CNRL lawyer David Myrol in the call with the judge. "We had 53 charges being laid, and that certainly signals the comprehensiveness of the approach that prosecutors took to the case," he said.
The 53 charges were laid in June 2009, more than two years after the incident. Twenty-nine were laid against CNRL. But three years later, all the charges against CNRL were stayed, while those against Chinese contractor Sinopec Shanghai Engineering Ltd. were withdrawn.
The remaining three charges were against SSEC Canada, a subsidiary of a Chinese company established one year before the accident, specifically to bid for work in the Alberta oilsands.
It pleaded guilty to failing to ensure the health and safety of a worker and paid fines totalling $200,000, along with contributing $1.3 million to the Alberta Law Foundation.
There was never a trial, and no one has testified under oath about the circumstances around the deaths.
The fatality inquiry would have heard from witnesses that were sworn in. However, unlike a trial, a fatality inquiry is not intended to assess blame. Its purpose is to determine the circumstances around a death and make recommendations to avoid similar situations from happening in the future.
Bob Barnetson, a professor of labour relations at Athabasca University, calls CNRL's attempt to prevent an inquiry "shameful."
"I mean the only thing at risk in a fatality inquiry here quite frankly is CNRL's reputation as an employer, and that seems to me to be what they're trying to protect," he said.
Reports finally released
Following the collapse, Alberta Occupational Health and Safety completed an 18-page report that pointed to key failures in the incident. The investigation report was publicly released Monday, eight years after its completion, following requests by CBC News.
CBC also obtained an agreed statement of facts entered when SSEC was sentenced in January 2013. Though a public document, the Alberta provincial court refused to release the report without a judge's consent.
At the time of the Jan. 22 hearing,the reports had not been published in a place where the public could access them. However, CNRL lawyer David Myrol argued the OHS report in particular already answered the sort of questions that would come up at a fatality inquiry.
"It certainly satisfies the public objective of the underlying, the Fatality Inquiries Act," Myrol told the judge.
A troubling picture emerges
Together the two reports draw a troubling picture of workplace conditions on the CNRL Horizon site.
Ge and Liu were among 132 Mandarin-speaking workers brought from China to work building large storage tanks. With the project falling behind schedule, SSEC proposed a "revised assembly procedure" to speed up construction. CNRL signed off on the plan.
On April 24, 2007, the roof of one of the tanks collapsed, killing Liu and Ge, seriously injuring two workers and leaving three others with minor injuries. Of the 13 workers inside the tank at the time of the collapse, 11 were from China.
The OHS report reveals that the SSEC employee who developed the revised procedure was not a qualified professional engineer. It also notes that the construction workers were "given only verbal instructions on the erection procedure." Investigators found that CNRL had not required SSEC to provide any written procedures.
It concludes the lack of professional oversight was a contributing factor in the accident. "The designer, who was not a professional engineer, determined that there was a minimal need for wind bracing," the report states. It found the bracing that was used did not meet the Alberta Building Code.
Collapse and confusion
Workers on the tank heard several loud bangs and pops, as the roof structure began to collapse. Liu, an electrician, was killed instantly by falling steel. Ge, a scaffolder, was also hit by the twisted shards of metal and died in an ambulance on the way to hospital in Fort McMurray.
The OHS report found that the employee responsible for monitoring activity inside the tank "was not competent." The worker "was not aware of the emergency response requirements" and "did not have a telephone or radio to summon assistance."
Several other tanks were being built at the time, and Occupational Health and Safety officers ordered work on them to stop immediately. That decision may have saved more lives, as a second tank collapsed in a similar manner days later.
While the two reports answer some of the questions about why the tank collapsed, AFL president McGowan said many more remain, including how Alberta building standards were so easily bypassed.
"They basically took Chinese standards for construction and management on a very dangerous site and imposed them on a Canadian work site," said McGowan.
McGowan said he supports a full inquiry, but CNRL's lawyer blames the labour organization for failing to act when it had the opportunity. Two letters addressed to McGowan invited the AFL to participate in the January hearing. Lawyers for the Alberta government sent the first in September, and the second one day before the teleconference. They received no reply.
Myrol took the lack of response as tacit approval of quashing the inquiry. "I would submit sir, that the party that really pre-empted this entire public inquiry is the federation themselves," Myrol told Jacques, the judge. "They've been notified of this public fatality inquiry and have chosen not to participate in it."
McGowan said the first invitation arrived at AFL offices while he was on leave, running in the federal election. Because it was addressed to him personally, it was not opened, he said. When the second notification arrived, it was too late to make a case for the inquiry, McGowan said.
"As a result, big oil companies and foreign state-owned companies from China frankly were let off the hook. There was no accountability, there's no responsibility, and for this lawyer to be making these comments at this point just adds insult to injury."
CNRL declined to be interviewed or provide any of its background documents related to the application. "As this matter is before the courts, Canadian Natural will not be commenting for your story," a company spokesperson told CBC News.
No date has been set for the inquiry. Barnetson said that limiting it to questions around choice of ambulance makes the whole exercise futile. "The fatality inquiry as it's been truncated by CNRL's court application is pointless. But if it was a full fatality inquiry that looked into how similar worker deaths could be prevented in the future, that is very necessary."