Michael Henderson, a young worker employed by Springhill Construction Ltd. died while working at a wastewater treatment and pumping plant in Fredericton, New Brunswick, in 2018. 

The City of Fredericton contracted with the company to construct a 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 drowned. 

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; that the action or failure to act caused someone’s death; and that there was a ‘wanton or reckless disregard for the lives or safety of other persons’. A ‘wanton or reckless disregard’ involves a ‘marked and substantial’ departure from the conduct of a reasonable person in the circumstances. 

Evidence at trial revealed that the supervisor had not read any reference or safety manuals available to him, and did not make himself aware of his obligations under the New Brunswick Occupational Health and Safety Act and the regulations on confined spaces. The Regulations require the implementation of various safety precautions, including 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 these 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 was in use.  

The judge determined that the standard expected of a reasonable site supervisor on a construction site must include at minimum, familiarity with their binding legal duties under relevant legislation and regulations. A reasonable supervisor would familiarise themselves with any site-specific safety and basic manufacturer’s instructions 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 fatal accident. 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, the judge noted the complexities of implementing a rigid standard for the conduct expected of a reasonable site supervisor, and confirmed that what will be reasonable will depend on the circumstances. 

The judge found that the supervisor’s actions and inactions were indeed a ‘marked and substantial’ departure from the conduct of a reasonable supervisor in the circumstances, thus demonstrating a ‘wanton or reckless disregard for the lives or safety of other persons’, and found him guilty of criminal negligence causing death. Sentencing will occur in September. The offence carries a maximum sentence of life imprisonment. 

This case is a reminder to employers and supervisors alike that ignorance of legal obligations is no defence. Those responsible for safety at work must be aware of relevant legislation and safety protocols. Employers should continue to provide strong and continuing safety training to all employees, especially to supervisors and those responsible for other workers. Ensuring everyone on site is informed, practicing safe habits and aware of necessary protocols protects everyone. 

The author gratefully acknowledges the assistance of Hunter Bettens, a Summer Student in Ius Laboris’s Canadian firm, Mathews Dinsdale.