Three parties plead guilty after P.E.I. workplace accident at potato warehouse

A 2019 workplace accident at a potato warehouse on Prince Edward Island is the subject of court proceedings in Summerside. (OHS Canada)

By Alison Jenkins, Local Journalism Initiative Reporter

SUMMERSIDE, P.E.I. (THE JOURNAL-PIONEER) — Two construction companies and a foreman have pleaded guilty to charges resulting from a workplace accident that left an Emerald man in a vegetative state.

Ryan Mahar, now 33, was at work building a potato warehouse on Sept. 4, 2019 when he fell around 20 feet to the concrete ground below.

A CT scan showed a severe skull fracture. Mahar also suffered a brain injury and a broken tibia. A year after the incident, he is still nearly unresponsive and lives in the hospital. The Workers’ Compensation Board has supplied some equipment such as his wheelchair and is paying Mahar a small salary.

The general contractor, G.E. Macneill Contracting Ltd., the sub-contractor, Seymour DesRoches Construction (2011) Ltd, and site supervisor Sean Campbell, were all charged under the Occupational Health and Safety Act.

All parties pleaded guilty at P.E.I. provincial court in Summerside.

“They did do things wrong, that’s for sure,” said Lori Mahar in an interview with The Guardian following the latest court appearance Sept. 30.

During the proceedings, the court heard a summary of the facts surrounding the incident from Crown attorney John Diamond.

Worker was struck by truss

At the Emerald worksite, a nine-person crew had finished installing half the roof trusses. They moved the equipment and the crane and were ready to begin installing the second half.

Mahar was standing on some rolling scaffolding.

The crew was lifting the first truss into place when a gust of wind caught it. It swung and knocked Mahar from the platform. He fell onto the concrete below.

Campbell saw it all happen and called 911. A co-worker provided first aid.

Mahar was taken to the Prince County Hospital and then transported to a Moncton hospital.

An Occupational Health and Safety (OHS) investigation found there was no written fall protection plan or fall protection training records for workers at the jobsite.

“Mr. Mahar was a relatively new employee at the time did not have much experience in the construction industry. Although he did have fall protection training a few weeks prior to the incident, it doesn’t appear things were copesetic on the worksite,” said Diamond.

Both the employer and the supervisor were aware that a fall protection system was required but did not take necessary steps to ensure it was provided, Diamond said.

‘A tragic case’

The court also heard that Mahar’s prognosis is not good.

“He is presently in a vegetative state and it does appear that there’s not much chance that there’s going to be any improvement,” said Diamond.

“This is a tragic case … No sentence is going to satisfy or fix the harm caused to Ryan Mahar,” said Diamond. He later added, “There’s nobody involved in this that hasn’t been affected.”

After the Crown presented the facts, Judge Krista MacKay had questions about a stop work order issued to Seymour DesRoches 2011 Ltd. on Aug. 6, 2019, for lack of fall prevention training. Training was given promptly.

“I just wonder about that, because it’s only a month before this happened, and yet there still was no fall protection system in place,” said MacKay.

David Hammond, defence attorney representing Seymour DesRoches owner Mitchell DesRoches and site supervisor Sean Campbell,

said both men are contrite, and the incident was a lifechanging event for them both.

“There’s no coming out of this in a good way,” said Hammond. “This is a small community and reputations will be hurt. That’ll lay heavy on both of these individuals; they’ll be carrying that forward as they move on.”

Management at Macneill Construction Ltd. is also feeling regret about being “perhaps not quite as in tune” with fall prevention as they should have been, said the company’s defence attorney, Jeffrey Leard.

“It has affected him profoundly, he alone feels the weight of this,” said Leard.

Fines are the usual consequence for this kind of workplace accident.

Consideration of monetary penalties

Leard and Hammond made a joint recommendation for a $40,000 penalty for both companies which is divided into a $5,000 fine and $35,000 payable to the Workers Compensation Board for educational purposes such as fall prevention training programs.

For Campbell, the defence has recommended a fine of $2,000.

The penalties aren’t meant to make up for the loss of the person, but to change the companies’ behaviour, said Diamond.

Lori Mahar agreed. “None of it’s going to change it, but if it changes the way they work, you know, makes people work a little bit safer, then that would be a good thing,” she said.

DesRoches told the court his company was already improving its safety environment when the accident occurred.

“I don’t want the court to think it needed this accident to happen. We were slowly changing,” he said. “We were doing things (to improve) last year before the accident happened. We’re light years ahead of where we were 10 years before … Since the accident we continue to try to do more.”

He also said there is no “set playbook” for installing the first truss that would let everyone be tied off with safety harnesses. On each new project, he and his crew look for ways to make it safer, he said.

Campbell has learned since the accident what was expected of him as a supervisor.

“I never knew that was my responsibility to take all those men into consideration like that. But, the training I received, I now know that’s my job too.”

Decision coming Oct. 7

Hammond said his clients had taken some safety precautions that day.

“They put Ryan up on that roller scaffolding because he had been observed to be a little bit nervous in the morning and they perceived it to be the safest place that he could be that afternoon when that first truss went up,” said Hammond.

Also, workers on the site had put Tyvek on the rafter while it was on the ground, to save someone from having to put on the fabric while in the air.

“With a little bit of wind and with the tag line that broke, it had all makings of what has occurred,” said Hammond.

MacKay said she will deliver her decision on Oct. 7.

“I realize it’s trying for everyone to keep coming back here, but I want to make sure we get it right.”