N.S. family's lawsuit in workplace death could set precedent

Chad Smith's parents and grandparents are suing J.D. Irving Ltd. for Smith's 2016 workplace death at the company's sawmill. Irving is arguing that the claim is statute barred by the Workers' Compensation Act.

Chad Smith was killed on the job at the J.D. Irving sawmill in 2016

Chad Smith's parents and grandparents are suing his employer, J.D. Irving Ltd., for Smith's 2016 workplace death. (Submitted by Kalie Olmstead)

A wrongful death lawsuit by the family of a Nova Scotia man killed on the job in 2016 could set a precedent in this province, the family's lawyer says.

Chad Smith was 28 when he was killed at J.D. Irving's lumber mill in Valley, N.S., near Truro, on June 27, 2016. He was struck by a front-end loader while crossing a bridge for vehicles and pedestrians at the mill.

Smith's parents, Nancy and Kevin Smith, of Ellershouse, and his grandparents, Frances and Robert Chambers, are suing Chad's employer, J.D. Irving, and the driver of the loader.

Irving challenging the claim

The Smiths' lawyer, Stacey England, said Irving is challenging the claim.

The Fatal Injuries Act allows parents or grandparents to sue the at-fault party if a child or grandchild is fatally injured.

But under the Workers' Compensation Act, employees who are covered by the act are not allowed to sue their employer. So if Chad had survived, he would have been prohibited from suing.

"J. D. Irving is arguing that the only legal rights Chad's parents have are a derivative of the rights Chad would have had if he had survived the accident," England explained.

Chad Smith spends time with his daughter Chloe. (Submitted by Kalie Olmstead)

England said she doesn't believe the province envisioned that the Fatal Injuries Act would remove parents' and grandparents' legal rights if somebody is killed in a workplace.

"What they see is that a big corporation is denying any little bit of compensation that they should be receiving," she said of the family.

No case law on issue in Nova Scotia

A Nova Scotia Supreme Court judge will decide on interpretation of the Fatal Injuries Act to see if the family's claim can stand. There is no case law on this issue in Nova Scotia.

"So this will be the first time this issue has been adjudicated here in Nova Scotia, so it will be a precedent-setting case," England said.

The family is suing for an undisclosed amount of damages under the Fatal Injuries Act for loss of companionship.

"So the inability to watch Chad, their son, grow old, share birthdays together, watch him get married, raise a family — all the things that a parent would do with their child," England said.

Family claims Irving and driver negligent

In the 2017 statement of claim, the family alleges that the driver of the front-end loader was negligent. They claim he operated the vehicle in a careless and reckless manner and failed to apply the brakes when the collision was imminent.

They further allege that Irving was negligent in that the company entrusted the vehicle to an "incompetent, impaired or inexperienced driver," failed to properly train the driver in the operation of the front-end loader and failed to create or maintain a safe workplace.

No defence has been filed in the case and none of the allegations have been proven in court.

Because this matter is before the courts, J.D. Irving declined comment.

Last week, a provincial court judge fined the company $89,500 in penalties for the incident. The judge found that neither the driver, Robert (Bob) Sellers, nor Smith were at fault for Smith's death.

Irving earlier pleaded guilty to one count of violating the Occupational Health and Safety Act.

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About the Author

Sherri Borden Colley

Reporter

Sherri Borden Colley has been a reporter for more than 20 years. Many of the stories she writes are about social justice, race and culture, human rights and the courts. To get in touch with Sherri email sherri.borden.colley@cbc.ca