Foreman acquitted of criminal charge in death of worker who fell during store construction in Darmouth, N.S.

The Kent Building Supply store on Cutler Avenue in Dartmouth, N.S. Photo: Google

Jeff Gooch, a construction site foreman, has been acquitted of criminal negligence causing the death of one of his workers by the Supreme Court of Nova Scotia.

Brandon Alcorn was killed on the job on March 13, 2018, while installing “blueskin” on the walls of the entrance tower of a new Kent Building Supply store that was under construction in Dartmouth, N.S. He was part of a three-person crew working that day, including foreman Gooch.

Gooch was charged with a single count under the Criminal Code for criminal negligence in causing the death of Alcorn.

What happened

Gooch was a supervisor/foreman for Insulated Panel Structures (IPS) and was working with Alcorn and another worker on March 13, 2018.

As the three were working on the right-hand side of the tower, Alcorn fell off of the far right edge of the canopy — plunging 18 feet to the ground below. This occurred about 10 minutes after Alcorn arrived for work at around 10 a.m. Alcorn was late to start his shift that morning, with Gooch stating he told him he had “slept in.”

He was critically injured and died later that afternoon. Video footage from a nearby business captured the incident. During the 10 minutes Alcorn was on the job, he measured and cut lengths of blueskin to be applied to the structure by Gooch and the other worker.

“He was engaged in rolling out another such length, walking backward doing so. He ultimately walked backward off of the far right edge of the canopy,” the court said in the ruling.

Gooch and the other worker did not see Alcorn fall. They were alerted by another worker on the ground, and descended from the canopy to help. Later, Gooch and the other worker provided statements to police and to Occupational Health & Safety. Gooch also provided a written report to his employer.

The Crown alleged that, during the course of the statements, Gooch said some things that weren’t true.

“He said them while unaware that video footage subsequently obtained from a building in the vicinity, was available,” the court said. “The Crown argues that the statements, which are conceded to have been voluntarily provided, constitute after-the-fact conduct (lying) which betrays a consciousness of guilt.”

The Crown argued that he was criminally negligent, and that it led to Alcorn’s fatal fall.

The court’s analysis

The court thoroughly reviewed the evidence and testimony from a number of witnesses and experts. It noted the statements indicated that Alcorn was not in the “proper work area” when he fell.

Gooch said there was nothing in their work that required them to be closer than six feet from a leading edge, and the other worker said there was nothing in their work that should have brought them closer than 10 feet from a leading edge.

“Both say Mr. Alcorn had travelled significantly further away from the proper work area,” the court said. “Had he been required to work in the immediate area from which he fell he would have been required to use PPE and be tied off.”

While the court said some portions of Gooch’s statements were obscure, allowance must be made for the fact the statement was provided the very day of the fall, likely at a time when he did not know whether Alcorn was going to live or die as a result of his injuries.

“I am certainly not prepared to infer, absent of evidence to that effect, that there was anything in the statement concocted or invented for the purposes of evading guilt, whether with respect to potential charges under the Occupational Health & Safety Act, or the criminal charge which was subsequently laid,” it said.

The court also noted that Nova Scotia OHS regulations do not prescribe a mandatory “tie off” when working from heights closer than a minimum specified distance from a leading edge. It pointed to the testimony of OHS investigator Terry Duggan.

“He agreed that a very effective form of fall protection is to require workers to stay back a minimum safe distance from a leading edge. He also agreed that, unlike Nova Scotia, some provinces do identify, in their legislation, a minimum ‘fall hazard area,’ or the ‘safe distance from the unguarded edge’ while working at heights,” the court said. “For example, in British Columbia, an employer is responsible for determining the ‘fall hazard area,’ which is to be a minimum of 2 m (6.5 feet) from the unguarded edge.”

The court also said that Alcorn knew what the workplan was, had received appropriate fall protection training and knew that he had the right to refuse unsafe work.

“He signed the job hazard assessment on March 12, 2018, which constituted an acknowledgement that the plan was never to work closer than 6 feet from a leading edge (indeed, the plan implemented never required him to get closer than 10 feet),” it said.

Impairment on day of the fall

A toxicologist testified that Alcorn had both Delta-Carboxy THC and Delta-9 THC in blood samples taken about five-and-a-half hours after his fall.

The court noted that, unlike alcohol, there is no algorithm to mathematically determine what the THC level in Alcorn’s blood would have been at the time of the accident. But toxicologist Jennifer Swatek said that the THC levels would have almost certainly been higher, and indeed may have been much higher, when he fell.

“In her view, for a person to walk off the end of a roof, seemingly paying no attention to their surroundings, would be consistent with that individual’s impairment, since this type of behaviour is generally not displayed by sober people,” the court said. “The amount of the substance found (in) Mr. Alcorn’s blood ‘could’ be consistent with him having consumed marijuana between 8-10 a.m. on March 13, 2018.”

The court concluded that it is “likely” that his intoxication caused him to “depart significantly from the route which his actual work duties ought to have required, a route to which he appeared to have no difficulty adhering the day prior.”

It said Alcorn’s conduct that day was “so grossly inappropriate as to have been virtually unforeseeable on the accused (or anyone else’s) part.” On that basis alone, it said Gooch was entitled to an acquittal.

Summing up the ruling

The court made a number of comments about the case:

• There is no regulation under Nova Scotia’s OHSA requiring “tie up” when working closer than a specified distance from a leading edge. It is a decision which must be made having regarding to all exigent circumstances.
• There was no evidence that the hazard analysis submitted by IPS, and signed by the foreman, worker, and the victim, caused the general contractor (Maxim Construction) or its site superintendent the “slightest bit of discomfort.”
• A crew working on an adjacent canopy performing similar work was not tied off, nor did they appear to have any more extensive or different fall protection measures in place than IPS.
• A crew working on the very top roof could be seen walking around carrying items from one end of it to another, without any fall arrest mechanisms that would have kept them away from a leading edge.
• Duggan, the OHS officer, confirmed he had been at hundreds of job sites where workers had not, in his opinion, been using proper protection.
• Finally, the site superintendent at Maxim agreed that some contractors may use the six-feet from the edge as a safe distance to work without fall regulation, even though he goes by a 10-foot rule.

The court said Gooch’s guilt was not proven beyond a reasonable doubt.

“I have been left in substantial doubt with respect to virtually all of the criteria which the Crown was required to prove. Accordingly, an acquittal is entered,” it said in the ruling, which was released on Jan. 4, 2024.

For more information, see R. v. Gooch, 2024 NSSC 4 (CanLII).