David Hamilton didn’t set out to be a whistleblower.
He was content working as a pipefitter, but just over a dozen years ago, while working in the Vancouver area, he started coming across asbestos and looking into what was supposed to happen in terms of being exposed to the material – and what all too often didn’t happen.
He found many employers were not taking precautions, so he started sounding the alarm, only to find himself out of a job. Over the years, the situation has cost him work and added enormous mental strain.
A few years back, he moved to Vancouver Island, hoping to put this behind him, but in May 2019 in Comox, he was again faced with asbestos and felt the need to speak up, but again he paid a price.
“Once you’ve had your eyes opened, you can never close them,” he says.
Asbestos, according to Health Canada’s website, actually refers to several materials. Prior to 1990, it was mainly used for insulation or fire-proofing buildings, but was linked to cancer and other diseases such as asbestosis, a chronic lung condition with no cure.
In Canada, the main concern is exposure to material in buildings erected prior to 1990 when a building or part of it is taken down or remodeled, which disturbs the fibres. WorkSafeBC’s website notes different types of asbestos were used from the 1950s to 1990, though it is still said to be the number one killer of workers in the province. In 2018, for example, it was a factor in 47 work-related deaths, even though asbestos mining in Canada ended in 2011.
Blowing the whistle
Hamilton, who now lives in Cumberland, says he’s been fired from a number of jobs for speaking up.
A friend and former colleague likens Hamilton’s actions to “Norma Rae,” the working class hero who fights poor working conditions, as portrayed by Sally Field in the 1979 Oscar-winner.
The friend still works in the industry and asked not to be identified. He has had his own issues and wishes WorkSafeBC would follow up on more employers, as he’s also witnessed the toll that years of battling for safe conditions has taken on Hamilton.
The local jobsite
In his career, Hamilton earned an asbestos abatement ticket, but too often companies ignore the need for a plan. Fed up, he and his wife came to the Comox Valley to escape. However, in May 2019, he was on a jobsite at Comox United Church and knew of another case at a jobsite nearby just weeks earlier where asbestos was found, so he started to worry about the need for an asbestos-abatement plan.
WorkSafeBC documents show there was a stop-work order at the site after his complaints. Following an inspection in early June 2019, the agency demanded compliance at the church site. As the order states, “A worker at Apex Plumbing had expressed concern about the potential for exposure to asbestos at that workplace. As it turned out, Apex Plumbing and Heating did not have an asbestos exposure control plan, or program to manage asbestos risk in its plumbing work.”
Some samples tested negative, but there were positive samples found in some drywall mud, sheet vinyl flooring and flooring adhesive. A church spokesperson confirmed there was a stop-work order placed at the site that June because of asbestos.
“The situation was resolved according to WorkSafeBC requirements. WorkSafeBC closed the file, confirming that Comox United Church had fulfilled all our obligations. The work in the basement was completed in the fall of 2019,” Joanne Wiens, chair of Comox United Church council, told the Record in June.
For Hamilton though, the matter was anything but closed.
He only found out about the stop-work order that October after having been dismissed by the employer in late May.
This spring, he filed a suit for wrongful dismissal against the employer, as he had two years from dismissal to do so. As he’d spent most of the two years dealing with WorkSafeBC, he needed to get a lawsuit filed within the window, which was to expire at the end of May. He also recently filed a small claims suit against the church.
The process of serving his employer took some unexpected turns when he could not hand over legal papers in person, even trying to follow the employer. He and his wife then hired a process server. A receipt shows the server first made contact on May 20, 2021, then again on May 25, 26 and 27. Finally, on May 28, in time for Hamilton’s end-of-month deadline, the server managed to deliver the legal documents on time.
Apex’s Willy Stjerneberg was not able to comment on the matter of Hamilton’s claim because of the ongoing criminal charges against Hamilton, but dismissed the argument the termination had anything to do with asbestos, but rather workmanship. The company has a restraining order against Hamilton due to what it alleges is ongoing harassment.
The company points out the church itself was the general contractor, and that it was a subcontractor at the Comox worksite and thought there was a plan in place. Apex adds it now has an asbestos abatement plan in place as standard operation procedure.
Before the courts
The initial confrontation over serving papers has Hamilton in criminal court. The attempts to hand-deliver the lawsuit papers have resulted in a harassment charge. He was also charged for “break-and-enter” at the WorkSafeBC office in late 2020 for what he describes as an act of civil disobedience, specifically climbing a fence.
He tried the BC Human Rights Tribunal, but it dismissed his claim. Because of a shoulder injury during his work with Apex, he alleged the company did not offer him light duties, which he felt amounted to discrimination. There was disagreement over the timeline for filing, and the tribunal found his allegations “too speculative.” In September, it denied a request for reconsideration.
The question of whether Hamilton was wrongly dismissed is a civil court issue, while the cases of whether he was guilty of trespassing and harassment will be decided in criminal court. The first is scheduled for later this month.
Of all potential remedies for Hamilton, he has mostly been waiting on WorkSafeBC, only to be frustrated, even learning the shoulder injury has come back to haunt him in unexpected ways.
Part 2 of the story looks more at the case with WorkSafeBC and protection for workers.)