Supervisor in New Brunswick convicted of OHS criminal negligence: Norm Keith

A confined space safety sign in an industrial application. Photo: Getty Images

A recent trial decision of the New Brunswick Court of King’s Bench resulted in another prosecution of a supervisor under the Westray Bill amendments to the Criminal Code, effectively establishing a new crime of occupational health and safety criminal negligence.

The case arose from confined space work that went wrong at a municipal wastewater treatment and pumping plant. The supervisor was charged when a worker under his direction was subject to an inrush of water into the confined space that trapped the worker. He could not be rescued in time to save his life.

This important case addressed a number of legal issues and at least three critical questions that apply to all Canadian employers. These questions are also important for the information and guidance to OHS professionals.

First, can OHS regulatory standards be used to form the basis of an OHS criminal negligence charge? Second, is there a legal obligation to conduct a formal “hazard assessment” when conducting potentially dangerous work? Third, what is the personal responsibility of a supervisor to understand and follow OHS regulatory standards not provided formal training by his employer?

Death at construction site

On Aug. 16, 2018, Michael Henderson died at a construction site in Fredericton. He was employed on the site by Springhill Construction Ltd. and worked under the supervision of the accused, Mr. King. The charge on the Indictment reads as follows: “On or about August 16, 2018 at Fredericton, New Brunswick did, by criminal negligence cause the death of Michael Henderson, contrary to s. 220(b) of the Criminal Code of Canada and amendments thereto”.

The facts leading up to the incident were as interesting as they were tragic. The owner of the municipal wastewater treatment and pumping contracted out the construction of a secondary clarifier.

The project would enhance the plant’s treatment of liquid waste before it went into the Saint John River. The deceased was working in an eight feet deep hole in the middle of the new clarifier. He was protected from the surrounding water by a large pneumatic rubber plug.

The plug unexpectedly released into the hole with an onrush of water, pinning the worker in his confined space work area that quickly filled with water. The worker drowned before the emergency response effort could rescue and recover him.

The evidence at trial was that the supervisor of the worker was not specifically trained in the provincial confined spaced safety regulations and he had not read the instructional manual relating to the use of the industrial plug. The trial judge summarized the failures of the accused as follows:

159 Mr. King had no viable safety plan in place. He knew Michael Henderson was in the hole, after lunch finishing the clean-up, yet he kept putting water into the manhole increasing the pressure on the plug. Mr. King did not do a hazard assessment before directing that anyone work within a clearly identifiable confined space. He did not place any barrier around the hole during the test to ensure no one went near it. He put water into the system knowing a person was working on the other side of a plug installed in a manner inconsistent with the manufacturer’s clear direction. He ignored the Springhill site specific directions for work in a confined space. He did not comply with the legislative provisions that he was required to uphold.

160 At 12:51, under the pressure of the water that Mr. King had begun to introduce into the manhole approximately an hour earlier, the plug let go. It trapped Mr. Henderson and, despite the best efforts of those on scene, including his brother Eric, Michael could not be removed from the hole. Approximately one minute after the plug released and trapped Mr. Henderson, Mr. King turned off the hydrant stopping the flow of water into the hole. But the force of the plug on Mr. Henderson’s chest, and the water that was rushing into the hole, could not be overcome. By the time Michael Henderson was removed from the hole, efforts to revive him were futile.”

The central legal development of the Westray Bill is the new legal duty under section 217.1 of the Criminal Code , which if contravened may lead to a charge of OHS criminal negligence. It reads as follows: That legal duty reads as follows: “Everyone 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 the work or task.” [emphasis added]
This raises the first question mentioned above — can OHS regulatory standards be used to form the basis of an OHS criminal negligence charge? This has critical implications for all workplace stakeholders, not just supervisors. The trial judge conducts the following analysis and provides the answer to that question in the affirmative:

167 As noted above, I am satisfied that the duties set out in the Act and Regulations impose legal duties on Mr. King and fall within the intent and meaning of s. 219 of the Code when it speaks of duties that arise by the imposition of law. I will not therefore, opine on the application of the Crown’s alternative argument as it relates to s. 217 [sic] of the Code.

Failure to conduct hazard assessment

The second question of the courts review was the accused supervisor’s failure to conduct a hazard assessment of the construction work. The supervisor had neither been asked by his contractor employer, nor the owner the facility to conduct a hazard assessment. The accused argued that this duty did not apply to the supervisor and, alternatively, the workplace was not a “confined space.”

Both arguments were rejected and the failure of the accused supervisor to conduct a hazard assessment of the work at the construction project was a critical failure of a legal duty of the accused supervisor. The second question was also answered in the affirmative.

Third, since the supervisor did not have confined space training from his employer, the trial judge had to determine what degree of responsibility did the supervisor have to conduct hazard assessment, understand the precautions to be taken when using the plug, and how to be prepared to rescue the worker if something went wrong.

The standard of proof of all elements of an OHS criminal negligence charge, and any criminal offence, is proof beyond a reasonable doubt. However, the rank tragedy of the worker’s preventable death appears to have moved the court towards strict application of the OHS regulatory standards to the accused under the Westray Bill. The court says:

172 In my view, 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. Construction sites, by their nature, contain hazards and can be dangerous (as this incident so tragically proves) and the legislative scheme is meant to reduce and, if followed, hopefully eliminate, that risk. In addition, one should expect that the reasonable supervisor would have familiarized themselves with any site-specific safety plan. Furthermore, the reasonable site supervisor would have familiarized themselves with the basic manufacturer’s instructions regarding the safe use of equipment used on the site. These are the basic, fundamental elements of what I find to be the minimally acceptable standard of conduct for a supervisor in the circumstances of Mr. King. I use the phrase ‘basic fundamental elements’ because, in my view, any failure to meet those basic fundamental elements would, by its very nature, represent a marked and substantial departure from this acceptable minimum standard.

The net result of this assessment of the accused to take “basic fundamental elements” of workplace safety, even though that is not part of the criminal law, was a criminal conviction. There appeared to be little sympathy towards the accused supervisor’s plea that he was not given proper safety training by his employer.

The judge says the following: “I accept Mr. King’s evidence that he was not given any training by Springhill. There was no evidence to the contrary. But whatever the reason, Mr. King did not take the steps one would expect of a “reasonably prudent person” to protect Mr. Henderson, having directed him to work in a confined space in the circumstances existing. With that said, it must be established that his acts or omissions give rise to criminal liability as set out on the Indictment.” (para. 174)

On balance, the accused supervisor was convicted in a trial where he was remarkably the only accused. This case and the reasons for judgement reinforce the importance for supervisor, and their employers of hazard assessment, OHS law compliance, and informed decision making before hazard work is performed. It is also stark reminder that the consequences of failing to take those steps may result in criminal charges under the Westray Bill that retrospectively place blame on all those who may have been able to prevent a workplace tragedy.

Norm Keith is a partner, employment and labour law, at KPMG Law LLP in Toronto. The views and opinions expressed herein are those of the author and do not necessarily represent the views and opinions of KPMG LLP.