Family challenges ‘suicide’ label on father’s file

Ever since Robert Els’ death 15 years ago, his family has been waiting for an explanation they can swallow.

Ever since Robert Els’ death 15 years ago, his family has been waiting for an explanation they can swallow.

This week, they finally got some news that gives them hope.

On Nov. 5, 1995, Els was crushed between the box and cab of a gravel truck while working on a Golden Hill Ventures road-building contract.

His body was found by one of his co-workers upon lifting the box of the truck, which was found with the passenger side door open and the engine running.

Els was found lying face-down beneath the box, with his hands under his head. At least that’s what the one report says, while a handful of statements, photos and notes taken at the scene indicate otherwise.

Inside the cab was a letter from his sister – a letter which would mistakenly be labelled a suicide note by the coroner and police, and would become the bane of Els’ daughter, Angela, and her mother, Lynn MacKinnon.

According to the coroner’s report, investigators noted a single set of footprints showing Els had walked from the cab of the truck to the bed.

The investigators reported finding no sign of struggle, no injury to his head to indicate he had accidentally been knocked unconscious and fallen into harm’s way.

According to a mechanical report done by the company’s head mechanic, the truck was in working order and the box lift was functioning as it should, meaning it would drop eight seconds after being activated.

In the months following, MacKinnon and Angela were denied any surviors’ benefits, because the Yukon’s workers’ compensation board ruled Els had taken himself off the job when he decided to take his own life.

They left the Yukon shortly after.

“I like it up there better than I like it here,” MacKinnon told the Star last week from her home in Alberta.

“I would have stayed, but they forced me out. They almost drove me nuts saying that Robert killed himself.”

Judging by the coroner’s report, it was simple case of suicide. Look a little deeper, however, and the case of Els’ death becomes murky indeed.

MacKinnon does not believe Els killed himself. As his partner for almost a decade, she knew Els as a man who adored his daughter, worked hard to save money for her education and wanted to have more children.

“It was his last day on shift,” MacKinnon said of the day Els died.

“He’d called home and was off the next day. He was planning to visit Angela; she was the main purpose in his life. He was planning a trip with his dad to Venezuela to visit his brother. He wasn’t planning on killing himself.”

MacKinnon has more to go on than her belief that Els wouldn’t take his own life.

She has pored over all the reports and documents produced in the course of the investigation into his death, and found too many holes to accept suicide as the explanation of her partner’s death.

Police jumped to the suicide conclusion before finishing their investigation, MacKinnon said, using the letter from his sister as their evidence.

Two officers came to her door the night after Els was found and told her they knew it was suicide because there was a note. Her daughter, then eight years old, also heard the news before the coroner had made an official finding.

“She came home from school saying, ‘My dad killed himself.’ Now where would she have heard that?” MacKinnon asked this week, her outrage still palpable a decade and a half later.

“She heard it from the kids who heard it from their parents. People were saying all kind of things that weren’t true.”

She pointed to statements made by Els’ co-workers, who said he was depressed and using cocaine.

“His autopsy came out clean; he wasn’t taking any drugs,” MacKinnon said. “ ... Why would they even have him on the job if they thought he was strung out on cocaine?”

Inconsistencies such as this one are rife throughout the case of Els’ death.

They were noticed by the Yukon workers’ advocate, who made submissions at a hearing on the case in front of the Workers’ Compensation Appeal Tribunal 10 years after Els died.

During the 2005 appeal hearing, the advocate pointed out there was never any suicide note, only the eight-page letter from Els’ sister, in which she said she hoped her brother was feeling better.

The advocate told the hearing panel there was a significant amount of documentation which was never released by the coroner, police and Els’ employer, including a second inspection report done on the vehicle after Els’ death.

She also referred to a handwritten document which said the truck was moved before Els’ body was found. Another said it would take 25 seconds for the box to drop after the lever was activated.

Still another document brought forward by the workers’ advocate said the truck had been moved 100 metres from where Els had left it and there were no footprints to show where Els had stepped out of the cab, and that another employee had walked to the cab and opened the door to see if Els was inside sleeping.

The tribunal dismissed MacKinnon’s appeal, but the hearing only raised more issues for Els’ family.

Shortly after the decision was made, it came out that one of the members of the appeal board, Ed Sumner, had spoken to one of the witnesses about the case while at the Whitehorse Curling Club.

MacKinnon made a complaint and workers’ compensation board president Valerie Royle ordered an investigation.

The investigator reported that Sumner had asked Myles Kowalyshen, Els’ uncle and foreman on the Golden Hill job site, about the case, but did not divulge any confidential information.

“If anything, Sumner was looking for answers as opposed to divulging information, as he knew that Myles was fairly well-informed given the fact he was a relative and the executor of Els’ estate,” the inspector’s report reads.

The report noted that neither Sumner nor Kowalyshen could remember exactly what they talked about. It also said Kowalyshen’s wife was present during the conversation, but was never questioned about it.

Royle dismissed MacKinnon’s complaint, saying “that at no time did Mr. Sumner divulge any confidential information to Mr. Kowalyshen.”

“I thought it was a conflict because Myles should have been sworn in under oath just like I was sworn in under oath,” MacKinnon said.

“And I don’t think they should have been talking about it while drinking at the curling club. The person he was talking to was Robert’s uncle, who was also the foreman for Golden Hill and also a friend of Jon Rudolph, who owned the company.”

Even if Sumner didn’t technically “divulge” any information, MacKinnon still thinks it was inappropriate for him to be chatting about the case over beers at a bonspiel. If a judge did the same thing, she says, a retrial would be ordered.

MacKinnon has been fighting for the past five years to have the case reheard, and this week, she finally received some good news.

With help from the staff at the Yukon’s NDP caucus office, MacKinnon lodged a complaint with the Yukon ombudsman last year.

On Monday, she received a letter informing her that ombudsman Tracy-Anne McPhee agrees with her position.

”Even though the presiding officer (Sumner) says he didn’t learn anything new that affected the outcome, it is not the content of the conversation that was significant,” McPhee writes.

“Rather, it is the fact that the presiding officer stepped out of his role as an impartial adjudicator and became an investigator for the purpose of collecting information to assist in making the decision that creates a reasonable apprehension of bias. The information he was seeking was material to the very decision the tribunal had to make.”

She recommended that a new appeal panel be made to revisit the matter, and also delivered the news that the Workers’ Compensation Appeal Tribunal has agreed.

“I think next time it will be wise for us to be there,” MacKinnon said Wednesday, referring to the fact she gave evidence over the phone at the 2005 hearing.

“I’m not too happy about this Val Royle. To say there was nothing wrong with what happened at the curling club, I think she was just protecting her people.”

MacKinnon said she hopes the panel will remove the suicide label from Els’ file so his daughter can finally draw the benefits, and the closure MacKinnon says her daughter deserves.

“It’s affected her upbringing, her education. It affected her by not getting what she needed,” MacKinnon said of Angela.

“And it’s affected her because it was labelled suicide. That’s a big word to slap on a person, especially when no one who knew him could believe it.”