Workplace fatalities have frequently attracted charges under the Occupational Health and Safety Act and Regulations. For the first time in New Brunswick, a supervisor has been found criminally liable, following a workplace fatality, for failing to follow safety rules and protocols during a work project.
In His Majesty the King v Jason Andrew King, 2023 NBKB 084, a construction site supervisor was found guilty of criminal negligence causing death because his actions and inactions significantly contributed to the cause in the death of an employee under his supervision.
Facts
The employer, a construction company, was contracted to build a concrete clarifier (a large tank). The centre of the clarifier had a deeper hole, and at the bottom was a horizontal pipe that led to a nearby manhole.
On August 16, 2018, the supervisor instructed an employee to clean the bottom of the hole inside the clarifier. The supervisor then made the decision to conduct a leak test to see if the pipe was airtight. To do so, the pipe would be sealed with an inflatable plug and the manhole would be filled with water to test if the pipe leaked. The supervisor did not communicate to the employee that a leak test would be done that day.
The supervisor plugged the pipe and began filling the manhole with water. Later, while the employee was cleaning the bottom of the hole, the plug slid out of the pipe. The employee was pinned to the wall as the water rushed in. The clarifier filled with water and the employee was trapped under the water. The employee died by drowning.
The supervisor was charged with one count of causing death by criminal negligence.
Standard for Supervisors
To be guilty of criminal negligence causing death, a supervisor must have either committed an act that caused the death of another or failed to act as they were legally required to, causing the death of another.1 In either case, the supervisor's action or inaction must be a marked and substantial departure from that of a reasonable supervisor in the circumstances.
Justice Christie held that there are three basic elements of the minimally acceptable standard of conduct for a reasonable site supervisor on a construction site. A supervisor must familiarize themselves with:
- The legislated duties that were binding upon them as set out in the Occupational Health and Safety Act and its Regulations, and any other applicable legislation;
- Any site-specific safety plans, especially where there is work in a confined space or where dangerous machinery or tasks are used or performed; and
- Basic manufacturer's instructions regarding safe use of equipment.
A supervisor's failure to meet any of these three basic elements is a marked and substantial departure from the acceptable minimum standard, which opens them to criminal liability.
Decision
The supervisor was found to have failed to act in accordance with the minimally acceptable standard of conduct for a reasonable site supervisor on a construction site.
With regards to his actions, the supervisor ran water into the manhole while an employee was working in it. It was unquestionably unsafe to have any person in the hole during a leak test.
With regards to his inactions, the supervisor's many omissions showed "wanton and reckless disregard for [employees'] life and safety", including that:
- he did not read or familiarize himself with any of the
employer'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 of supervisors;
- he did not identify the hole where the employee was working as a 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, safety precautions for the leak test;
- he did not inform the employees that he was conducting the leak test, which removed them of their right to refuse dangerous work; and
- he did not place any barriers around the hole to prevent employees from entering.
The supervisor's actions and inactions did not meet the minimally acceptable standard of conduct for a reasonable site supervisor. He was found guilty of criminal negligence causing death. He will be sentenced in September of 2023.
The employer faces separate criminal charges from the same incident. The trial in relation to the employer's criminal charges will take place in the fall of 2023.
Takeaways
Workplace safety is a serious issue that can attract not only liability under the Occupational Health and Safety Act and Regulations but also criminal charges. Employer must take all reasonable precautions to protect the health and safety of their employees, and other persons, in the workplace. Employers should provide occupational health and safety training to employees and require that they review all applicable safety materials and are familiar with the health and safety risks in the workplace and plan for them accordingly.
Notwithstanding the actions of the employer, supervisors have a separate legal duty to familiarize themselves with:
- Their legislated duties under applicable legislation, most notably the Occupational Health and Safety Act;
- Any site-specific safety plans; and
- Basic manufacturer's instructions regarding safe use of equipment.
A supervisor who does not familiarize themselves with these three elements of the minimally acceptable standard of conduct for site supervisors may be personally held criminally liable if there is a workplace fatality, regardless of whether their employer ensured they were familiarized with these elements.
Footnotes
1. Supervisors have specific legislated duties under the Occupational Health and Safety Act, its regulations, and under section 217.1 of the Criminal Code, which requires supervisors to take reasonable steps to prevent bodily harm to those under their direction. Legislated duties are meant to reduce, and hopefully eliminate, the hazards of dangerous work environments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
