A New Brunswick construction site supervisor will spend three years in prison after being convicted of criminal negligence relating to a 2018 workplace fatality. 

At sentencing on September 12, 2023, New Brunswick Court of King's Bench Justice Thomas Christie explained deterrence guided his imposition of a prison sentence for Springhill Construction Limited supervisor, Jason King. "Deterrence is necessary to convey to the public that criminal acts will not go unpunished and to deter others from committing similar acts."

This criminal act resulted in the death of 18-year-old Michael Henderson on a construction work site at a wastewater treatment and pumping plant in Fredericton on August 16, 2018. Henderson, a recent high school graduate, was working in a four-foot-wide, eight-foot-deep hole in the middle of a larger concrete structure under construction. A plug inserted in a pipe became dislodged releasing water into the space. The rushing water pinned Henderson against the wall. He was unable to escape and drowned.

“This sentence should send a strong message to employers across the country that all workplace parties, including supervisors and managers who direct work, must fulfill their obligations under the Criminal Code and workplace health and safety legislation,” explained Myles Sullivan, Ontario and Atlantic Canada director, United Steelworkers Union (USW) in a USW media release following sentencing.

The USW led efforts pushing for corporate accountability for workplace safety in response to the Westray mine disaster in Pictou County, Nova Scotia on May 9, 1992. Twenty-six men were killed. The outcome of this effort, Bill C-45, commonly known at the Westray Bill, amended the Criminal Code in 2004 establishing new rules for attributing criminal liability to organizations, including corporations, their representatives and those who direct the work of others, but who among other things do not take reasonable steps to prevent bodily harm and instead show a wanton disregard for workers’ lives and safety. In determining reasonable steps Judge Christie looked to general and specific supervisor duties outlined in New Brunswick occupational health and safety law.

Supervisor negligence confirmed

In court earlier this year, King admitted never reading the companies safety manuals or learning safety protocols specific to the project or his duties as a supervisor, as set out in New Brunswick’s Occupational Health and Safety Act. It was also noted by Justice Christie, King failed to identify the hole in which Henderson was working as a "confined space." New Brunswick health and safety legislation mandates a range of safety precautions relating to work in confined spaces. Further, King failed to inform Henderson of the test underway, including thousands of litres of water being added to a nearby manhole, to see if the plug was secure enough to hold the water in the pipe.  
 
Prior to announcing the original conviction on June 5, 2023, Justice Christie explained King's actions showed "a wanton and reckless disregard" for the safety of Henderson. "The factor in this case I find most difficult to understand is Mr. King's attention to the safety of Mr. Henderson's was nowhere close to what was minimally required of him. In this case I find he did nothing he was required to do."

Employer negligence case to be heard

The employer in this case, Springhill Construction Limited, has also been charged with criminal negligence in Henderson’s death and is scheduled to go on trial in early 2024.  
 
“We do not believe this matter has come to an end with today’s sentencing of the supervisor,” explained Daniel Légère, President of the New Brunswick Federation of Labour in the same September 12 USW media release referenced above. Légère was in the courtroom for the sentencing. “The evidence already accepted in court demonstrates that the company employed a supervisor who was not sufficiently trained on critical health and safety issues. The company’s role in this tragedy has not been resolved and we expect a vigorous prosecution on the criminal negligence charge.”

Supervisor competence and employer compliance

Ontario’s Occupational Health & Safety Act (OHSA) requires employers to appoint a competent person as a supervisor. A competent person is:

• qualified because of knowledge, training and experience to organize the work and its performance,
• familiar with the OHSA and Regulations that apply to the work, and
• knowledgeable about any potential or actual danger to health or safety in the workplace.

Employers are also required to ensure supervisors complete occupational health and safety awareness training and be competent to carry out their significant obligations to protect workers. This must be done within one week of performing work as a supervisor.

WHSC can help

Workers Health and Safety Centre’s (WHSC) comprehensive one-day Supervisor Training program offers an engaging learning experience including the exploration of relevant case law and provisions of the Criminal Code and the OHSA to give participants a clear understanding of their extensive obligations to protect workers.
 
Register now for WHSC Supervisor Training—offered in-person and virtually over the coming months
https://www.whsc.on.ca/Training/Training-Registration
 
Need other essential and legally mandated training such as joint health & safety committee certification, GHS-WHMIS, working at heights or workplace violence and harassment? Check out our complete in-person and virtual training schedule.
 
Want to know more about relevant sections of the Criminal Code?

Want to read the USW September 12, 2023, press release about this criminal conviction and sentencing?
 
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