On June 5, 2023, the N.B. Court of King’s Bench found a construction site supervisor guilty of criminal negligence causing death contrary to s. 220(b) of the Criminal Code of Canada following a workplace accident that resulted in the death of a young construction worker.
Michael Henderson, a young worker employed by Springhill Construction Ltd. (the “Company”) died while working at a wastewater treatment and pumping plant in Fredericton, N.B. on August 16, 2018.
The City of Fredericton contracted with the Company to construct a clarifier or settling tank as part of a program to improve the treatment of wastewater discharged into the Saint John River. The worker was working inside an 8-foot deep, 3.5-foot wide hole, cleaning debris as directed by his supervisor, Jason King. While cleaning out the hole, water began to trickle from a horizontal pipe running into the hole. As a result, a rubber plug was inserted into the pipe to stop water from entering the hole. The supervisor decided to conduct a leak test while the plug was in place and while the worker was still in the hole but failed to inform him the test was being conducted. When the supervisor began to flood the pipe system, the pressure of the water forced the plug to come loose, flooding the hole with 14,000 litres of water and pinning the worker against the wall of the hole. The worker could not be rescued in time and died from asphyxia due to drowning.
The supervisor was charged with criminal negligence causing death. A conviction for criminal negligence requires that the accused did something or failed to do something that the accused had a legal duty to do; the accused’s action or failure to act caused someone’s death; and the accused’s actions or failure to act show “wanton or reckless disregard for the lives or safety of other persons.” An accused’s actions or failure to act will show a “wanton or reckless” disregard where there is a “marked and substantial” departure from the conduct of a reasonable person in the circumstances. A conviction will occur if the Crown proves beyond a reasonable doubt that the supervisor either committed an act that caused the death of the worker, or the failure of the supervisor to do something he was under a duty to do caused the death of the worker. Both scenarios require the act or omission to be a “marked and substantial” departure of what would be expected from a reasonable supervisor in the circumstances.
Evidence at trial revealed that the supervisor had not read any reference or safety manuals available to him, whether to aid in understanding his role as supervisor or regarding safety protocols of the specific project and the use of the plug, nor did he make himself aware of the obligations under the New Brunswick Occupational Health and Safety Act and confined space regulations. The regulations require the implementation of various safety precautions including amongst other things, an assessment of the space and potential hazards, a designated rescue plan, and ensuring communication between the worker in the space and someone outside of the space. None of the precautions were taken, and the extent of the supervisor’s rescue plan was limited to having someone pull the worker out of the hole. Additionally, the supervisor was aware that he was responsible for the health and safety of workers on site, knew that the worker was in the hole when he began the leak testing, and he ignored the directions on the plug itself to review the manual and ensure a clear work area while the plug is in use.
Justice E. Thomas Christie determined that the standard expected of a reasonable site supervisor on a construction site must include at minimum, familiarity with their legislative binding duties under the relevant legislation and regulations. A reasonable supervisor would familiarize themselves with any site-specific safety and basic manufacturer’s instruction regarding the safe use of equipment. Any failure to meet these “basic fundamental elements” would represent a marked and substantial departure from the acceptable minimum standard.
At trial, the supervisor argued he was not properly trained by the Company on how to be a supervisor. The judge rejected this argument, finding that the supervisor’s inability to address the obvious safety issues associated with a worker being in a confined space and failure to inform the worker that the test was being performed were contributing factors to the worker’s death. The supervisor’s lack of attention to the worker’s safety was described as taking “insufficient elementary precautions in the face of a common sense hazard.” However, in doing so, Justice Christie noted the complexities of implementing a rigid standard for the expected conduct of a reasonable site supervisor, and confirmed what will be reasonable will depend on the circumstances.
The Court found that the supervisor’s actions and inactions were a “marked and substantial” departure from the conduct of a reasonable supervisor in the circumstances, demonstrating a “wanton or reckless for the lives or safety of other persons”, and found him guilty of criminal negligence causing death.
Sentencing will occur in September. The maximum sentence for the supervisor is life in prison.
This case is a reminder to employers and supervisors alike that ignorance of the law is no defence. There is an obligation for workplace parties to be aware of applicable legislation and relevant safety protocols. Employers should continue strong safety education to all employees, and especially those who oversee others, like supervisors. Ensuring everyone on site is informed, practicing safe habits and aware of necessary protocols protects everyone.
If you have any questions regarding this development or any other workplace law issues, please do not hesitate to contact a Mathews Dinsdale lawyer.
The author gratefully acknowledges the assistance of Hunter Bettens, a Summer Student in the firm’s Halifax office.