On August 16, 2018, Michael Henderson was fatally injured in a workplace accident at a construction site in Fredericton, New Brunswick. Following the accident, Jason King, Mr. Henderson’s supervisor was charged with criminal negligence causing death. He was convicted on June 5, 2023. On September 12, 2023, Mr. King was sentenced to three years in prison.
Mr. Henderson was an employee of Springhill Construction Ltd. who had been contracted to construct a clarifier, a large tank-structure that is used to remove solid waste from water at a wastewater treatment and pumping plant. Mr. Henderson was working inside the clarifier (referred to as the hole) when a large plug became dislodged, causing approximately 32,000 litres of water to flood the clarifier tank.
Mr. King, a supervisor with Springhill Construction Ltd. since late 2015, had been the supervisor on the clarifier project since the summer of 2018.
Unlike other criminal prosecutions pertaining to occupational health and safety issues, the Crown primarily relied on the general criminal negligence provision under section 219 of the Criminal Code, which states:
219.(1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives of safety of other persons.
(2) For the purposes of this section, “duty” means a duty imposed by law.
It was determined that the duty imposed under this section could arise from section 217.1 of the Criminal Code or from the provisions of the Occupational Health and Safety Act and regulations. Section 217.1 of the Criminal Code provides that:
217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
In this case, the Crown had the burden of proving beyond a reasonable doubt that Mr. King committed an act that caused the death of Mr. Henderson. The Court outlined the following test for liability at paragraph 120:
… the focus comes back to assessing the conduct of Mr. King that day and whether it was a marked and substantial departure from what would be expected of a reasonable site supervisor in such circumstances.
The Court focused on the fact that Mr. King failed to advise Mr. Henderson and other workers that he would be conducting a leak test and introducing water into a hole (sump) that was eight feet deep and three-and-a-half feet wide with a pipe protruding half way up and into the hole. The hole was part of a larger clarifier that was being built to enhance the City’s liquid waste infrastructure. As a result, Mr. Henderson could not exercise his legal right to refuse unsafe work.
The Court rejected Mr. King’s evidence that he had given the workers specific instructions not to return to the hole prior to the accident. Mr. Henderson’s work partner on the day of incident testified that he knew that water would be going into the manhole after lunch and that he had been instructed by Mr. King to finish up what they were doing (i.e. clean-up the hole).
The hole was determined by the expert evidence to be a confined space. The Court noted at para 67 how:
Mr. Sgrosso testified at being perplexed as to why he was being asked by Mr. Bennett to give an expert opinion on whether the hole was a confined space as the answer was, he thought, self-evident. A concrete hole eight feet beneath grade and three and one-half feet wide could not be considered as anything other than a confined workspace.
The Court emphasized that Mr. King (and Springhill Construction Ltd.) failed to comply with the legislated requirements for confined space entry. Mr. King made no attempts to implement safety precautions for workers under his supervision and he failed to conduct the required hazard assessment prior to allowing the workers into the hole. The workers received no confined space training and there was no safety plan in place for the workers to be extricated from the hole in case of emergency. Mr. King also testified that he was not even aware of the legislated requirements. The Court determined that Mr. King’s plan to pull out workers in case of an emergency demonstrated a wanton and reckless disregard for worker safety. It was noted that this was a case in which convenience was prioritized over safety, and in which tragedy could have been prevented if several minor things were done.
Mr. King unsuccessfully attempted to shift the blame onto his employer. Although the Court accepted Mr. King’s evidence that he did not receive training from Springhill Construction Ltd., it was found that he failed to take the steps of a reasonably prudent supervisor to protect Mr. Henderson’s safety. Mr. King chose not to read the relevant manuals or safety materials that were made readily available to him onsite, and did nothing to inform himself of what was required of him as a supervisor. Further, it was a matter of common sense that the plug may come loose and present additional hazards for those employees working in the hole. The Court agreed with the Crown that:
… no expert testimony is needed to establish a point of common sense. It is one thing to state the common sense notion that the plug could come loose. But the danger is multiplied from it coming loose inside a confined space of the size here. This compounds the danger in which Michael Henderson was placed by Mr. King and it highlights what, I find to be, a most elementary lack of attention to Mr. Henderson’s safety by Mr. King – insufficient elementary precautions in the face of a common sense hazard (para 151).
Mr. King’s actions were found to be a significant contributing factor to Mr. Henderson’s death. As stated by the Court at paragraph 169: “…Mr. King essentially put Mr. Henderson in the hole and then put the water into the system… the singular substantive cause of Mr. Henderson’s death was, I find, the running of water into the system while Mr. Henderson was in the hole.”
The Court determined that Mr. King failed to meet the standard expected of him and that he was guilty of criminal negligence causing death. On September 12, 2023, Mr. King was sentenced to three years in prison.
Springhill Construction Ltd. was also charged following the accident. Its trial is scheduled for January of 2024.
Takeaway: Reasonable expectations of a site supervisor
Under New Brunswick’s Occupational Health and Safety Act, 1983, c. O-0.2, supervisors are required by law to ensure the safety of workers under their supervision. Although the laws applicable in other Canadian jurisdictions may vary, this case provides guidance on what may reasonably be expected of a supervisor in ensuring worker safety.
While the standard expected of a site supervisor is context-dependent, it will involve, at minimum, becoming familiar with their legal duties:
… the standard expected of a reasonable site supervisor on a construction site of this type must include, at a minimum, that the supervisor had familiarized themselves with the legislated duties that were binding upon them as set out in the Act and the Regulations (at para 172).
A supervisor’s duty also includes becoming familiar with site-specific plans and manufacturer’s instructions for safe use of equipment. As the Court emphasized in this case, failure to follow these “basic fundamental elements” represents a marked and substantial departure from the minimum standard.
Overall, the case is a cautionary tale for supervisors. A failure to take reasonable steps at the worksite could result in a loss of liberty when their actions or omissions on the worksite fall markedly and substantially below what is expected in the circumstances.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.