Job Description
Canada: New Brunswick Site Supervisor Found Guilty Of Criminal Negligence Causing Death
Workplace fatalities have frequently attracted charges under theOccupational Health and Safety Act andRegulations. For the first time in New Brunswick, asupervisor has been found criminally liable, following a workplacefatality, for failing to follow safety rules and protocols during awork project.
In His Majesty the King v Jason Andrew King, 2023 NBKB084, a construction site supervisor was found guilty of criminalnegligence causing death because his actions and inactionssignificantly contributed to the cause in the death of an employeeunder his supervision.
Facts
The employer, a construction company, was contracted to build aconcrete clarifier (a large tank). The centre of the clarifier hada deeper hole, and at the bottom was a horizontal pipe that led toa nearby manhole.
On August 16, 2018, the supervisor instructed an employee toclean the bottom of the hole inside the clarifier. The supervisorthen made the decision to conduct a leak test to see if the pipewas airtight. To do so, the pipe would be sealed with an inflatableplug and the manhole would be filled with water to test if the pipeleaked. The supervisor did not communicate to the employee that aleak test would be done that day.
The supervisor plugged the pipe and began filling the manholewith water. Later, while the employee was cleaning the bottom ofthe hole, the plug slid out of the pipe. The employee was pinned tothe wall as the water rushed in. The clarifier filled with waterand the employee was trapped under the water. The employee died bydrowning.
The supervisor was charged with one count of causing death bycriminal negligence.
Standard for Supervisors
To be guilty of criminal negligence causing death, a supervisormust have either committed an act that caused the death of anotheror failed to act as they were legally required to, causing thedeath of another. 1 In either case, the supervisor'saction or inaction must be a marked and substantial departure fromthat of a reasonable supervisor in the circumstances.
Justice Christie held that there are three basic elements of theminimally acceptable standard of conduct for a reasonable sitesupervisor on a construction site. A supervisor must familiarizethemselves with:
- The legislated duties that were binding upon them as set out inthe Occupational Health and Safety Act and itsRegulations, and any other applicable legislation;
- Any site-specific safety plans, especially where there is workin a confined space or where dangerous machinery or tasks are usedor performed; and
- Basic manufacturer's instructions regarding safe use ofequipment.
A supervisor's failure to meet any of these threebasic elements is a marked and substantial departure from theacceptable minimum standard, which opens them to criminalliability.
Decision
The supervisor was found to have failed to act in accordancewith the minimally acceptable standard of conduct for a reasonablesite supervisor on a construction site.
With regards to his actions, the supervisor ran water into themanhole while an employee was working in it. It was unquestionablyunsafe to have any person in the hole during a leak test.
With regards to his inactions, the supervisor's manyomissions showed "wanton and reckless disregard for[employees'] life and safety", includingthat:
- he did not read or familiarize himself with any of theemployer's safety manuals, including:
- the safety manual specific to installing new clarifiers,
- the instruction manual regarding the use of the plug, or
- any of the defined legislated duties required ofsupervisors;
- he did not identify the hole where the employee was working asa confined space;
- he did not have a safety plan for confined spaces;
- he had no safety plan for the leak test;
- he made no attempts to plan for, and implement, safetyprecautions for the leak test;
- he did not inform the employees that he was conducting the leaktest, which removed them of their right to refuse dangerous work;and
- he did not place any barriers around the hole to preventemployees from entering.
The supervisor's actions and inactions did not meet theminimally acceptable standard of conduct for a reasonable sitesupervisor. He was found guilty of criminal negligence causingdeath. He will be sentenced in September of 2023.
The employer faces separate criminal charges from the sameincident. The trial in relation to the employer's criminalcharges will take place in the fall of 2023.
Takeaways
Workplace safety is a serious issue that can attract not onlyliability under the Occupational Health and Safety Act andRegulations but also criminal charges. Employer must takeall reasonable precautions to protect the health and safety oftheir employees, and other persons, in the workplace. Employersshould provide occupational health and safety training to employeesand require that they review all applicable safety materials andare familiar with the health and safety risks in the workplace andplan for them accordingly.
Notwithstanding the actions of the employer, supervisors have aseparate legal duty to familiarize themselves with:
- Their legislated duties under applicable legislation, mostnotably the Occupational Health and Safety Act;
- Any site-specific safety plans; and
- Basic manufacturer's instructions regarding safe use ofequipment.
A supervisor who does not familiarize themselves with thesethree elements of the minimally acceptable standard of conduct forsite supervisors may be personally held criminally liable if thereis a workplace fatality, regardless of whether their employerensured they were familiarized with these elements.
Footnotes
1. Supervisors have specific legislated duties underthe Occupational Health and Safety Act, itsregulations, and under section 217.1 of the CriminalCode, which requires supervisors to take reasonable steps toprevent bodily harm to those under their direction. Legislatedduties are meant to reduce, and hopefully eliminate, the hazards ofdangerous work environments.
The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.
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