Publication

3 Years’ Jail Time for Workplace Fatality; 3 OHS Law Lessons for Employers

Published:

October 13, 2023

Author(s):

Updated January 10, 2024.

On September 12, 2023, the New Brunswick Court of Kings Bench sentenced a front-line supervisor who “did nothing he was required to do” to jail for three years for criminal negligence causing the death of 18-year-old employee Michael Henderson. The decision in R. v. King appears to be the first conviction of a front-line supervisor under section 220(b) of the Criminal Code of Canada in New Brunswick, and one of few criminal charges resulting in a substantial term of imprisonment of a supervisor. The supervisor has appealed his conviction. But regardless of the outcome of any appeal the trial and sentencing decisions contain an express warning to all directors, officers and supervisors with responsibility employee safety: courts are willing to hold them personally accountable – and where death results from their failure to live up to their responsibility, prison time likely awaits.

The Tragedy

In late 2015, Springhill Construction promoted Jason King to supervisor. On August 16, 2018, he was an on-site supervisor at a Fredericton, N.B. site where Springhill was constructing a waste clarifier. Mr. Henderson was a Springhill worker under his supervision. An eight-foot-deep, four-foot-wide concrete hole was in the middle of the clarifier; a pipe ran half-way up and half-way into the hole. Before lunch, the supervisor instructed Mr. Henderson to work on cleaning out the bottom of the hole. To stop a water trickle from the pipe into the hole, the supervisor instructed workers to insert a pneumatic plug the owner had provided. Just before lunch, the supervisor converted the use of the plug to conduct a leak test and started to run water through the pipe and into the hole. After lunch, Mr. Henderson resumed his work in the hole. The Court found the supervisor knew Mr. Henderson was back working in the hole. The plug deflated during the test and failed. Thirty-two thousand litres of water poured into the hole. The plug pinned Mr. Henderson against the hole wall and he drowned.

The Supervisor

The Crown charged Mr. King with one count of criminal negligence causing death under section 220(b) of the Criminal Code. The Court found the supervisor did not, at any time:

Read any of the legislative duties applicable to supervisors.
Read any of the basic safety manuals related to the clarifier project that his employer gave him, including the Health, Safety and Emergency Plan specifically addressing minimum considerations for working in a confined space.
Perform a hazard assessment before directing anyone work in the confined hole.
Read the safety booklet related to the plug’s use, including that no one should work in proximity to the plug when in use and it should be braced before use and even though the plug itself notes safety hazards.
Brace the plug or direct anyone do so as the plug’s use guidelines specified.
Put a barrier around the hole during the test.
Read any of the legislative duties respecting employee’s right to refuse unsafe work nor explain them to the employees he supervised.
Make a safety plan for Mr. Henderson working in the confined space while the plug was in use beyond the intention for someone to pull him out of the hole if necessary.
Share that the leak test was about to begin with the workers under his supervision.
Tell Mr. Henderson he had started the leak test.
Instruct Mr. Henderson not to go back into the hole after lunch.

Conviction. On June 5, 2023, the New Brunswick Court of King’s Bench found the supervisor “…did nothing he was required to do” and found him guilty of criminal negligence causing death.

Legal Duty. The Court was definitive: the fact the supervisor didn’t inform himself of his legislated duties didn’t mean he wasn’t bound by – or obligated to follow – them. The Court concluded that for the purpose of criminal negligence, the supervisor was under multiple “legal duties” under both the N.B. Occupational Health and Safety Act and the confined spaces provisions under Regulation 91-191 to that Act.

Significant Contributing Cause. The supervisor’s actions (or inactions) need only be a significant contributing, not the only, cause of Mr. Henderson’s death. The Court quickly concluded that conducting the leak test created a risk of running water into the hole – into which the supervisor had also put Mr. Henderson – was foreseeable and was the “singular, substantive cause” of Mr. Henderson’s death.
Marked & Substantial Departure. The supervisor “did nothing he was required to do” in relation to the safety of the workers under his control. His inaction satisfied the elevated standard for criminal negligence causing death: a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances and a wanton or reckless disregard for the lives or safety of others. The Court agreed perfection isn’t the standard but found the supervisor didn’t even meet the basic, fundamental elements of a minimally acceptable standard of conduct expected of a reasonable site supervisor on this type of construction site – constituting a marked and substantial departure from the standard. These include that the supervisor familiarize themself with all the legislated duties under the Act and its Regulations, any site-specific safety plan and the basic manufacturer’s instructions regarding the safe use of equipment (the plug) used on the site. The Court also found the supervisor showed a wanton and reckless disregard for Mr. Henderson’s safety. He didn’t put his mind to the actions required of him – either before he sent Mr. Henderson to work in the hole or when he started to run water into the pipe for the leak test.

Sentence. On September 12, 2023, the Court sentenced the supervisor to three years’ imprisonment. The Court’s mind was most certainly on deterrence when it warned (para. 43),

“Mr. King, and all supervisors, forepersons or employers in the perhaps hundreds or thousands of construction or industrial sites in this province, large or small, carry the same duties to protect those the law places under their charge. The failure to know those rules, and apply them will, when accidents result in death because of such failure, surely lead to the likelihood that prison time awaits.”

Sentences are context-dependent making it challenging to compare. But in general, courts tend to treat acts of commission as more “blameworthy” than acts of omission. One of several cases the Court reviewed in setting the sentence was the 2016 Ontario Superior Court of Justice decision in R. v. Kazenelson, also criminal negligence of a supervisor in a construction context. There the Court sentenced the supervisor to three-and-one-half years’ imprisonment for four counts of criminal negligence causing death and one of criminal negligence causing bodily harm. In that case, the supervisor was guilty only of acts of omission. Here the Court referenced only the supervisor’s acts of omission. But it’s arguable he also committed acts of commission, or at least came very close to the line, for example directing Mr. Henderson to clean out the hole, deciding to run the leak test, and turning on the water, arguably making his conduct worse – and the sentence justified.

Appeal. The supervisor quickly filed an appeal of his conviction on the basis the Court made errors. Two of those alleged errors: the Court wrongly admitted the supervisor’s WorkSafeNB interview statements and misinterpreted them; and it wrongly found the supervisor breached the required standard without evidence to establish that standard. The appeal hearing is set for February 13, 2024 – and many will be closely watching.

The Employer

The Crown also charged the supervisor’s employer with criminal negligence causing death. The charges against the employer engaged section 22.1 of the Criminal Code, also added as a result of the Westray Disaster. Section 22.1 makes it easier to charge a company with criminal negligence (and other criminal offences). Before section 22.1, a company could only be charged with criminal negligence if one company representative with authority completed all the actions for criminal negligence. Since section 22.1, if two or more company representatives acting within the scope of their authority engage in separate conduct that collectively, if committed by a single company representative, would constitute criminal negligence the company can be charged with criminal negligence even if no one person could. For example, if previously it was necessary to prove a single person failed to take three actions to find the company guilty, now it’s sufficient to prove three separate people each failed to take one of those actions and collectively their failures constitute criminal negligence.

In December 2023, the employer’s pleaded guilty to a charge of failing to provide the necessary training, equipment and supervision to ensure an employee’s health and safety under the N.B. Occupational Health and Safety Act. On December 15, 2023, the N.B. Provincial Court sentenced it to a $100,000 fine – a resolution mirroring those of the owner and sole director in R. v. Swartz and the corporate employer in R. v. Metron (two in the series of “Metron” cases).

The 3 OHS Law Lessons

From a legal perspective, the Court’s decision holds three key lessons:

Investigations Are Important. As is standard, after Mr. Henderson’s death WorkSafeNB conducted an investigation into the incident. This included interviewing the supervisor and obtaining his statement about the incident and his role in it. Significantly, however, the supervisor’s evidence at his criminal trial was markedly different than his WorkSafe statements on several – key – points. The Court specifically decided that where they differed it would rely on the supervisors WorkSafe statements because they were contemporaneous with the incident. This included crucial answers on which the Court relied to decide the supervisor knew Mr. Henderson was in the hole while the supervisor was conducting the leak test – a determination key to the Court’s conviction of the supervisor. The Crown’s reliance on the statements is understandable given the evidence was more favourable to its case. But the Court’s reliance is raises some potential problems:

Did WorkSafeNB read the supervisor his rights at any time – particularly before the interview?
Was the supervisor under oath, sworn to tell the truth – as he was for his trial testimony?
Did the supervisor have the opportunity to consult with legal counsel at any time – before or during the investigation?

The supervisor’s appeal of his conviction claims the Court was wrong to both admit and rely on his WorkSafeNB interview at his trial, likely for many of these reasons. It remains to be seen whether that argument will succeed – but it’s a strong reminder of why it’s crucial to contact legal counsel immediately after a serious workplace accident occurs.

Degrees of Difference. By deciding that occupational health and safety laws and regulations imposed a legal duty on the supervisor, the decision reduces the separation between “regulatory” and criminal occupational health and safety offences to a question of the degree of the accused’s failure.

Regulatory Offences. Occupational health and safety laws impose obligations on various workplace actors. Failure to comply with those obligations is a regulatory offence. However, an accused can raise the defence of due diligence if they prove, on a balance of probabilities, they took all reasonable care that a reasonable person would have taken in the circumstances.

Criminal Offences. Under the Criminal Code, a person who shows “wanton or reckless disregard for the lives or safety of other persons” in either doing anything or not doing anything that’s their legal duty to do is criminally negligent. Under the so-called “Westray” provision of the Criminal Code, everyone with 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.” Among other things, the Crown must prove beyond a reasonable doubt that the accused’s conduct was a marked and substantial departure from the conduct of a reasonably prudent person in the circumstances and their conduct demonstrated a wanton or reckless disregard for the lives or safety of others. The defence of “due diligence” isn’t available – but presumably exercising due diligence would go some distance toward defending a criminal negligence charge.

The Court acknowledged the “legal duty” for the purposes of criminal negligence could arise from the “Westray” provision, but went further: it expressly decided the N.B. Occupational Health and Safety Act and the confined space provisions of Regulation 91-191 under that Act also imposes a legal duty for the purposes of criminal negligence. The practical result is that a breach of the Occupational Health and Safety Act or its Regulations resulting in death is no longer just a regulatory offence; it is highly likely to be charged as criminal negligence or, at the very least, to prompt a criminal investigation. The only distinction between the regulatory and criminal components of an accused’s conduct is the degree of the accused’s failure: was it a departure from the reasonable care that a reasonable and prudent person would have taken in the circumstances – or a marked and substantial departure? In answering this question, the Court drew heavily on “common sense” to determine what the supervisor should or should not have done to fulfil his legal duties in the circumstances. But this arguably involves a level of subjectivity. And it forms another basis for the supervisor’s appeal: he will apparently argue “common sense” isn’t a legally acceptable standard and therefore there wasn’t any evidence before the Court to establish the standard required of a reasonable supervisor.

No Finger-Pointing. An individual under a legal duty must fulfill it – and there’s no point in pointing the finger elsewhere. The supervisor pointed the finger at his employer (also charged with criminal negligence causing Mr. Henderson’s death) testifying it never trained him for his position as a supervisor, for dealing with confined spaces, or in the use of the failed plug that ultimately led to Mr. Henderson’s death. He also pointed the finger at another worker claiming they disconnected an air-compressor leading to the plug deflation and ultimate failure, and that he directed that same worker to tell Mr. Henderson to stop working in the hole. The Court generally accepted the supervisor’s evidence but was crystal clear: regardless of any lack of training, the supervisor still didn’t take any steps expected of a reasonably prudent person in the circumstances – which included directing Mr. Henderson to work in a confined space that the supervisor was filling with water without a safety plan – to protect Mr. Henderson. The Court was definitive: neither the employer’s nor any other employee’s conduct didn’t mitigate the supervisor’s personal negligence when it came to his conviction nor his moral blameworthiness when it came to his sentencing. The supervisor’s effort to point fingers, however, does highlights the multi-faceted nature of occupational health and safety obligations: employers, supervisors and employees all have legal duties under health and safety laws – and can all share liability for a single workplace accident. And in this case, the supervisor’s evidence probably played a role in the early (and likely negotiated) resolution of the charges against the employer.

Please contact your McInnes Cooper lawyer or any member of our Occupational Health & Safety Team @ McInnes Cooper to discuss how to fulfill your legal duty for employee safety.

Team Members ()

Insights ()

News ()

Pages ()

Services ()

3 Years’ Jail Time for Workplace Fatality; 3 OHS Law Lessons for Employers

Published:

Author(s):

Share

Share

Related Lawyers

Related Services

Related Publications

Stay Updated