HIS MAJESTY THE KING – v. –, 2023 NBKB 084

Citation: 2023 NBKB 084 Date: 2023 06 05 Docket: FCR-3-2022 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON BETWEEN: HIS MAJESTY THE KING – and – JASON ANDREW KING Date of Hearing: April 11-14, 17-20, 24-28, May 2, 10, 2023 Date of Decision: June 5, 2023 Before: Justice E.

Thomas Christie At: Burton, New Brunswick Appearances: Patrick McGuinty and Christopher Lavigne for the Crown Patrick Hurley, K.C. and Sabrina Winters for Jason King Christie, J. (Oral Decision) INTRODUCTION [ 1 ] On August 16, 2018, Michael Henderson died following an incident at a construction site in Fredericton, New Brunswick. He was employed on the site by Springhill Construction Ltd. and worked under the supervision of the accused, Jason King. Mr.

King stands before this court charged on a one count Indictment that reads: On or about August 16, 2018 at Fredericton, New Brunswick did, by criminal negligence cause the death of Michael Henderson, contrary to s. 220 (

b) of the Criminal Code of Canada and amendments thereto. [ 2 ] That

section of the Code states that: 220 . Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (

a) omitted

(

b) in any other case, to imprisonment for life. [ 3 ] The substance of the offence is set out in s. 219 of the Code . The Crown also invokes, in the alternative, s. 217.1 of the Code . The provisions state as follows: 217.1 Every one who undertakes, or has the 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 or task. 219

(1) Every one is criminally negligent who (

a) in doing anything, or (

b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Definition of duty

(2) For the purposes of this section, duty means a duty imposed by law [ 4 ] The incident occurred on a construction site on property owned by the City of Fredericton. It was known as the Barker Street Wastewater Treatment and Pumping Plant (the Plant). At the relevant time, a secondary clarifier was under construction. The clarifier construction was part of a four-phase program of improvement to the City’s infrastructure aimed at enhancing the process of treating the liquid waste generated within the City before it is then discharged into the Saint John River.

It was on the construction site of this clarifier that the incident of August 16 th occurred. [ 5 ] At the start of the trial, counsel submitted an agreement as to the timeline of certain events leading up to, and shortly following, the incident that resulted in Mr. Henderson’s death. Mr. Henderson’s death occurred when a large pneumatic rubber plug that was installed in a pipe that connected to a hole (or sump) in the middle of the clarifier in which he was working, let go from its position. The hole was eight feet deep. When the plug released into the hole, it pinned Mr.

Henderson against the wall of the hole and approximately 32,000 litres of water flooded instantly into and filled the hole to overflowing. Mr. Henderson was pinned against the wall with such force that he could not move and frantic attempts to rescue him failed. The parties agree that the cause of Mr. Henderson’s death, as determined by the forensic pathologist, was asphyxia due to drowning. [ 6 ] In these reasons, I will summarize the evidence presented by the witnesses in the order it which it was presented. I will then provide a

summary, in narrative form, of the facts which I find to be established beyond a reasonable doubt. Arguments of counsel will be reviewed, and the relevant law will be discussed and then applied to the facts. This is not a case where, generally speaking, the evidence presented is in dispute. WITNESS SUMMARIES Dan Harvey [ 7 ] The manager of the treatment Plant, Mr. Dan Harvey testified. He described the layout of the Plant, as it exists following the upgrades, as consisting of two aeration basins, two secondary clarifiers and a UV building which was also being built as part of the overall project.

The construction of the new clarifier was part of Phase 3 of the program that began in 2017. It was a large construction project under the general oversight of the Canada British Consulting Limited (CBCL). CBCL was involved in the preliminary design, the final design, the tendering and awarding of the construction contract. It also had a representative on site during construction to ensure it was completed to specifications and to generally oversee contract administration. Mr.

Harvey was involved in the initial design concepts of the project as the City’s representative. [ 8 ] Springhill Construction had been awarded the construction contract which included the UV building and the clarifier where Mr. Henderson died. CBCL would oversee Springhill’s work for compliance with the design parameters. Of particular concern in this matter is the construction of what was known as the second secondary clarifier.

It is a large round concrete pond wherein waste, which travels from the aeration ponds, is circulated and separated before it is then moved to the UV building for either discharge into the river or

routed back to the aeration ponds for further processing as needed. [ 9 ] The new clarifier under construction measures one hundred and eighteen feet in diameter and eighteen feet deep. The floor of the clarifier slopes toward the middle where there is found another hole that is a further 8 feet deep below grade and 42 inches in diameter. The incident that claimed Mr. Henderson’s life occurred within this hole, in the middle of the new clarifier. [ 10 ] Until May or June of 2018, Mr. Stephen King was the Site Supervisor for Springhill on this project. The accused, Mr.

Jason King, took over at that time and was site supervisor for Springhill at the time of the incident involving Mr. Henderson. Mr. Harvey testified that safety on the construction project was the responsibility of Springhill. With that said, he testified that if a safety issue had come to his attention, he would generally report it to CBCL’s on-site representative, Mr. Cole DeMerchant. If there was something obvious and of immediate concern, Mr.

Harvey would address it personally, and without delay, with Springhill employees. [ 11 ] There were regular site meetings, usually held bi-weekly, in the board room of the Plant. Regular agenda items included discussion of any safety issues. Attendees at these regular meetings included representatives of the City, CBCL and Springhill. In addition to Mr. Harvey’s presence at such meetings, City Plant Supervisor, Doug Sewell would attend. He reported to Mr. Harvey. Mr. Sewell was considered to be the regular contact between what was happening on the construction site and the City.

Minutes of these meetings were prepared by Springhill representative, Josh Lawrence. Mr. Lawrence would circulate these minutes to all participants and the minutes were kept. What was clear from Mr. Harvey’s evidence was that there had been ongoing discussions, leading up to the date of the incident, about the need to conduct leak testing for one of the pipe systems leading into the new clarifier. However, no final process or timeline was finalized during these site meetings. At site meeting Number 16, on August 7, 2018, the issue of testing for leaks in the pipes running underneath the clarifier was raised.

But again, there was no final decision on when or how the testing would be conducted. [ 12 ] Mr. Harvey did not recall if he had been told that Springhill would be doing the leak test by using a pneumatic plug, referred to during this trial as, ‘the plug’. The City owned several plugs that were stored at the Plant, one of which had been loaned to Springhill for its use on site. A plug is a large rubber device that is inserted into a pipe and inflated and used to stop the flow of liquid through a pipe. Mr.

Harvey had no specific recollection of discussions with Springhill pertaining to the competence of its workers to use the plug, the existence of any safety manual for the plug, nor the need to ensure that no one was working near the plug when it was in use. Mr. Harvey said that there would have been maintenance records on file for the plugs owned by the City, although he could not speak specifically of any records related to the plug at issue, having been marked as Exhibit P5. Mr. Harvey did not know of any specific training given by Doug Sewell to Springhill workers on the proper use of the plug. [ 13 ] Mr.

Harvey was a long-time employee of the City and had come to Fredericton from Saint John in 2005 where he was the Manager of Water and Waste responsible for Saint John’s water and sewer systems. He was familiar with the use of the type of plug that was to become an issue in this case (Exhibit P5). In his experience, plugs of this type were used as a means of holding back water while working on a job where water might be leaking into the site. Mr. Harvey testified that, during his time in Fredericton, the plug was never used for leak testing.

Nevertheless, the use of the plug was discussed at the site meetings for the testing and Mr. Harvey recalled his direction that the plug would need to be braced in place to keep it from moving. How that bracing should be constructed was not discussed, but the need to do so was. [ 14 ] Turning to the events of August 16 th , 2018, Mr. Harvey recalled that work on the clarifier was, by then, approximately 85% complete. Mr. Jason King was by then Springhill’s on-site supervisor. Mr. Harvey was working that day and would have, he said, probably walked to the site at some point.

Around noon he left for lunch and returned around 12:45 to 13:00. Upon return, he noticed that fire trucks were on site. Mr. Harvey testified that no specific safety plan related to the leak test had been finalized. From his experience in the use of such plugs, he would not put a person in the hole in the middle of the clarifier when the plug was being used. [ 15 ] Mr. Harvey testified that the reason he would not put a person in the hole where the plug was being used was because the plug could come loose.

He testified by asking the rhetorical question, “How obvious a proposition would that be?”. [ 16 ] Returning to the issue of on-site safety, Mr. Harvey testified that while Springhill was responsible for maintaining a safe worksite, any of the participants at the site meetings were free to raise safety issues. He had no recollection of WorkSafe NB appearing on site to do any inspection. Cole DeMerchant

[ 17 ] At the time of the incident, CBCL’s onsite project observer was Mr. Cole DeMerchant. He was on site daily. His job was to monitor all aspects of the clarifier’s construction to ensure compliance with project specifications. This included being certain that proper materials were being used, that the workmanship complied with the plans, inspection of the rebar placement and, generally, observe the work being done. He was required to make weekly written reports to CBCL – reports that were shared with Springhill and the City. [ 18 ] Mr. DeMerchant had regular contact with the construction crew, including Mr.

King. While Mr. DeMerchant is presently a licensed, professional engineer he was, in August 2018, a graduate engineer-in-training. [ 19 ] In May or early June 2018, Mr. DeMerchant began working fulltime for CBCL at the Plant site having taken over the role occupied until then by another CBCL employee, Mr. Avery Gilks. At the time of Mr. DeMerchant’s arrival on the job, Mr. Stephen King was Springhill’s site supervisor. Mr. DeMerchant confirmed that in or around June 2018, Mr. Jason King took over that function. Mr. King and Mr. DeMerchant interacted with each other regularly throughout each workday. It was Mr.

DeMerchant’s view that Springhill was responsible for safety on the project. [ 20 ] Mr. DeMerchant was aware that the City expected that there would be a leak test performed of the piping system that ran from the manhole, down and under the clarifier to where it existed into the hole in the middle of the clarifier. In the weeks to several months prior to the incident, he had discussions with Mr. King as to the procedures that could be developed to test the whole new piping system. Those discussions included potentially capping or plugging the system at various locations.

Water could then be introduced into the system and its height measured over time to detect any lowering of the water level which would signify a potential leak. [ 21 ] While there had been discussions concerning the process or procedure to be used, Mr. DeMerchant was of the view that no final decision had been made. But the need to do such testing was not in dispute. [ 22 ] On the morning of August 16, 2018, Mr. King and Mr. DeMerchant continued their discussions on how to do the leak test. This included the use of a measuring rod to determine any change in water level in the manhole.

Initially, water would be pumped into the manhole and it would flow within the piping system. Being a new piping system comprised in part of concrete, the concrete would need to cure, with water in it, for a set period of time to generate accurate measurements of any water loss in the system. [ 23 ] Mr. DeMerchant’s evidence was that, to the best of his recollection, the last discussion with Mr. King about the leak test occurred around 11:30 the morning of August 16 th . His expectation was that Mr. King would start to conduct the test later that afternoon. During the morning, Mr. DeMerchant had seen Mr.

Henderson on the slab floor of the clarifier clearing up regular debris. Around 11:55, Mr. DeMerchant left the site for lunch and testified that, by the time he had left, he had no understanding that water would be introduced into the manhole while he was away. Mr. DeMerchant believed he arrived back from lunch around 12:45. He was met at the gate by a frantic Springhill employee who exclaimed, ‘It has been too long – he’s gone!” He then saw Mr. King who told him that 911 had been called. No emergency vehicles had yet arrived. [ 24 ] During cross examination, Mr.

DeMerchant told of his early experiences with other construction projects he had worked on while a student. On certain projects, the owner would provide a session specifically dedicated to safety issues and concerns relative to a specific job site. When he joined CBCL, he was given orientation on safety issues by way of a safety manual and a power point presentation. It took one day to complete and CBCL’s Safety Officer would sign-off on its completion. [ 25 ] Mr. DeMerchant was familiar with the design plans and drawings for the project.

He testified that there was nothing on the plans that indicated a specific hazard associated with the hole in the middle of the clarifier. This was not a surprise since he stated that no such warnings are, generally speaking, marked on drawings. Typically, the safety requirements are met by adherence to all provincial safety regulations. [ 26 ] Mr. DeMerchant testified to a site-specific safety meeting he had with the labour crew for Springhill and Springhill’s representative. He said there may have been more than one such meeting.

There were also weekly ‘Toolbox’ meetings with the Springhill crew to discuss the upcoming work and to identify any potential safety hazards. These meetings were typically held in or around the construction trailer and included the Springhill supervisor. [ 27 ] Mr. DeMerchant did not recall if WorkSafe had ever made a visit to the site before the August 16 th incident. Mr. DeMerchant recalled that Mr. Doug Sewell, who worked under Mr. Harvey with the City, was on site regularly. There were not regular meetings with Mr. Sewell per se but, since Mr. Sewell worked at the Plant, he was often around. Mr.

Sewell was noted as not being shy about

identifying any hazards he noticed around the clarifier project. Mr. DeMerchant specifically recalled Mr. Sewell asking for guardrails to be installed around the top of the clarifier. Mr. DeMerchant also felt free to raise safety issues directly with Mr. King noting one occasion when he told Mr. King that Mr. Henderson needed to have his harness on at a specific location he was working, and that Mr. King addressed the concern within minutes. [ 28 ] Mr. DeMerchant spoke of the bi-weekly site meetings he attended that were typically held in the Board room of the Plant.

Representatives of the City and Springhill were present. At such meetings, any new safety issues were raised as well as follow-up on issues arising from previous meetings. Josh Lawrence for Springhill would prepare and circulate minutes of the meetings. As far as Mr. DeMerchant could recall, safety issues raised would be recorded in the minutes. [ 29 ] Mr. DeMerchant testified that, in general, all participants in a project have a responsibility to raise safety issues. His practice was to raise them with Mr. King who would address the issue as needed, or if it was of immediate concern, Mr.

DeMerchant felt he could raise it directly with the employee. Any safety issues of note were followed by a written report. One example he gave related to a concrete boom truck that, while backing up without a spotter, hit and broke a power pole. This was the only written report he recalled producing. Such written incident reports would go to Springhill and the City. Mr. DeMerchant testified that several months after the August 16 th incident, the City hired a Safety Representative, Mr. Ouellette, who did visit the site thereafter and who Mr. DeMerchant described as ‘proactive’. There was, to Mr.

DeMerchant’s recollection, no specific City safety representative who visited the site before the August 16 th incident. [ 30 ] Returning to the plan to test for leaks, Mr. DeMerchant confirmed that it was a requirement of the City that such testing be done. The City did not want to take ownership of the project without that test. The only way Mr. DeMerchant could foresee such a test being done was to put the system under pressure externally, meaning to fill the piping system with water.

Then, it would be left for a period of twenty-four hours to cure and then a further twenty-four hours to determine if there were any leaks in the system determined by using a measuring rod. [ 31 ] During the bi-weekly site meetings, there was no final set process or timeline for completing the test. During these meetings there would have been reference to the use of the plug – but no decision was made, nor did Mr. DeMerchant recall any direction from the City that a plug was not to be used for that purpose. [ 32 ] On the morning of August 16 th , Mr. DeMerchant examined certain of the concrete forms and rebar.

He noticed that Mr. Henderson was cleaning the floor of the clarifier but did not recall seeing him in the hole. A City truck arrived and delivered a hose near the hydrant. Mr. Keith Lovely was the City employee making the delivery. There may have been another City employee as well, but Mr. DeMerchant was not certain. Mr. DeMerchant recalled that, just before his lunch break, he discussed with Mr. King the general plan to fill the piping system and measuring to determine any lowering of the water level. The extent of Mr.

DeMerchant’s expected involvement in the testing process was to measure the water levels. [ 33 ] Mr. DeMerchant did not recall being advised by Mr. King on the morning of August 16 th , and before he left for lunch, that the plug had already been installed and the test would begin. However, Mr. DeMerchant made note of saying that his testimony should not be construed as meaning that Mr. King did not so advise. Nevertheless, when he went for lunch that day, Mr. DeMerchant recollection was that he was unaware that the test was going to begin while he was away. His expectation was that Mr.

King was, at some point that day, going to fill the line for testing and that the plug would be used for that purpose. Mr. DeMerchant had little experience in the use of the plug. Keith Lovely [ 34 ] Mr. Keith Lovely has been employed by the City for thirty years. He is an Operator III and worked primarily out of the Barker Street facility. On the morning of August 16 th , he was tasked by Mr. Sewell to bring a hose to the hydrant next to the clarifier and set it up so it could be used by Springhill. Mr.

Lovely arrived just before lunch and set the proper valve in place on the hydrant and purged the lines and the hose. He left the hydrant on but had turned off the valves. He was told by Dave Sewell that Springhill would be doing the leak test that day but was not exactly sure of when it would be done. Carter Dunphy

[ 35 ] Carter Dunphy, an employee of the City who worked as an Industrial Mechanic in the Plant, testified. His position was that of a Water Tech. He has extensive experience working with pumps, motors, bearings and instrumentation. He is currently the foreman. Even though he worked at the plant, he had little involvement with the construction project that was underway on August 16 th . As noted, an earlier phase of the project involved the construction of the UV building. The UV building is meant to provide a final stage of purification before release of treated waste into the river system. [ 36 ] Mr.

Dunphy had experience working with plugs. During the course of his work with the City, his use of such plugs was to stop or redirect water flow. At some point during the construction of the UV building, Mr. Dunphy was asked by Mr. Doug Sewell to deliver a plug to the UV building for Springhill’s use. As was his practice, he would replace the valve on the plug and install a new pressure gauge and hose before each use. He testified that he did this before he delivered the plug to Springhill at the UV building.

Prior to each use he would also check all fittings and inflate the plug for twenty-four hours to ensure it did not leak. The City had in their storage facility at the Plant plugs of different sizes. He did not recall which size he delivered to Springhill or if Exhibit P5 was the actual one he delivered. Nevertheless, he testified that he put a plug in the bucket of a loader and drove it to the UV building location and left it there for Springhill to use.

It was to be used in a pipe which was intended to prevent water from the river flowing back up through the system during the spring flooding. [ 37 ] He said he had knowledge of how to install, inflate and tie-off plugs. Mr. Dunphy noted that the plug required a gauge to be attached as a means of measuring air pressure in the plug during and after inflation. He was shown Exhibit P6, being a box containing a piece of hose he said looked like a

section of hose from Exhibit P5 (the plug), a valve to control the flow and an air pressure gauge. The gauge from P6 was not the type of gauge Mr. Dunphy said he would have previously installed on a plug (being Exhibit P5). It was not a liquid filled gauge being the type commonly used by the City. Similarly, he was unsure if the valve contained within P6 was a City valve. [ 38 ] Mr. Dunphy was asked about the proper sequence of attaching the valve and gauge to the hose.

He testified that the proper sequence was the compressor (on which there was a pressure gauge) to the ball valve, to the gauge and then to the hose (compressor → valve → gauge → hose). This was the only way to ensure the gauge gave an accurate reading of the pressure within the plug. As noted, he had not seen the gauge contained in P6 saying that it was not a City gauge. He demonstrated during his testimony the assembly in what he considered to be the proper order but found that the gauge would not attach properly between the valve and the hose.

He then tried to attach the gauge to the opposite side of the valve (gauge → valve → hose) and found it would attach. But this sequence of components, he said, would not provide a reliable pressure reading. The inference from Mr. Dunphy’s evidence was that when found after the incident, the plug (Ex. P5) had a non-City valve on it and was assembled in the wrong order. Mr.

Dunphy testified that he would always inspect the plug between uses to ensure that it was in proper working order. [ 39 ] After he had dropped off the plug to the UV building, he had no recollection of it being returned to the City, but he did believe he saw it located on another part of the construction site in the outdoors. The fact that it was stored outdoors concerned him. He was not asked to move it elsewhere after he delivered it to the UV building. Mr.

Dunphy was asked to examine Exhibit P5 and noted that the metal end plate of the plug contained notice that the plug was to be inflated to 25 psi, that one ‘must stand clear’ during use and, that one must read the instruction manual. On cross examination Mr. Dunphy noted that he was aware that there were instruction manuals for this plug. Most manuals were kept in the Plant’s library. He did not deliver a manual with the plug when he took it to the UV building. He had not read any instruction manual for plug use in the past.

Nevertheless, despite not having read the manual, his practice was that City workers do not work near a plug because, if the plug ever came loose, the plug itself, or the flow of water being held back by the plug, would be a hazard. There was no City policy to that effect – just the practice employed. He also testified that in his use of such plugs, he would always ‘tie-it-off’ to a secondary point so that if it did become loose, it would essentially stay in place. He has never braced a plug.

His experience was that he has had no need to have someone go into a confined space where a plug was in use because it would not be safe to do so. [ 40 ] Mr. Dunphy noted that the City required forms to be filled out after each use of the plug as a means of tracking what was done and what parts needed to be replaced. These forms were called Field Level Hazard Assessment Sheets. There was no such form for the use of the plug at the UV building. Clayton McKeil [ 41 ] Clayton McKeil was employed by Springhill on the clarifier project. He had worked there for over a year at the time of the incident. Mr.

McKeil recalled that the crew on August 16 th consisted of himself, Eric Henderson, Michael Henderson, Colin King and the accused, Jason King. Jason King gave out their work assignments that morning. Mr. McKeil and Eric Henderson were to be working on the launder. Colin King and Michael Henderson were tasked with cleaning the hole. Mr. McKeil recalled that Michael Henderson was in the hole and would pass up buckets of debris to Colin King.

[ 42 ] Mr. McKeil, along with the other workers, took their half-hour lunch break around noon. Mr. McKeil said he did not know that water had begun to flow into the manhole. Around 12:30, he and Eric Henderson continued with their work on the launder and Michael Henderson and Colin King continued to work cleaning the hole. Shortly after returning to work after lunch, Mr. McKeil testified that he heard a loud ‘swoosh’ type sound – ‘a large push of water’. He looked over toward the hole and saw Eric Henderson and Colin King already there. Mr.

McKeil described that he could see water gushing up from the hole and a blue hard hat that sunk beneath the top of the water. He heard a scream. He continued across the clarifier floor toward the hole and saw Eric Henderson in the hole trying to help Michael. Colin King was pulling on a rope. Mr. McKeil testified that he knew there was big trouble. Dark water was bubbling up from the hole onto the clarifier floor. There was, he said, nothing he could do. He ran to get Jason King who called emergency responders. [ 43 ] Mr.

McKeil said he had no knowledge of the plan to use water that day for the purpose of leak testing. He testified that there had been no safety plan in place regarding work in the hole. His experience as a journeyman carpenter told him that he would not work in a hole where a plug was being used in case the plug let loose. He noted that he had not previously worked in a situation where a plug was used in such close proximity to a worker. Jason Beliveau [ 44 ] Captain Jason Belliveau of the Fredericton Fire Department testified to his efforts, and the efforts of others, to free Mr.

Henderson from the hole on August 16 th . Having received the emergency call at his station it took five minutes to arrive at the scene, which he and others did, shortly before 13:00. He and a colleague descended the staging into the clarifier. He initially thought one person was involved because he could see a person’s head above the water. When he got to the hole, the person said, ‘It’s not me – it’s my brother’. Eric Henderson was holding onto Michael’s arm. Eric was removed from the hole and Capt. Belliveau took hold of Michael’s arm. He tied a rope onto Michael’s arm. Capt.

Belliveau did not know the construction of the hole or what might be beneath the dark gurgling water. He and his team, despite a variety of efforts, could not pull Michael out. [ 45 ] The only way to see what was in the hole was to drain the water. Pumps were placed in the hole and, as the water receded, Capt. Belliveau could see Michael was pinned against the wall by the plug. He lowered himself into the hole and, with a knife, stabbed at the plug. It deflated. This made it possible to remove Michael from the hole, which they did. There were no signs of life. There was no safety equipment on Michael.

Michael’s emergency care was turned over to Ambulance New Brunswick responders who were, by then, on scene. Capt. Belliveau recognized Exhibit P5 as the plug he deflated. Patrick Pickard [ 46 ] Mr. Patrick Pickard is an advanced care paramedic who responded to the scene. He is an employee of Ambulance New Brunswick and, on August 16 th , was working as a Clinical Support Specialist. He works separate from, but in support of, the ambulance team of first responders. He was dispatched and arrived at the clarifier at 13:15. He saw a line of firefighters pulling on a rope to try and free Michael from the hole.

They were, Mr. Pickard said, ‘pulling as hard as they could’. By 13:35, Mr. Pickard and his team were able to start CPR and utilized other methods to revive Michael. Despite their efforts, there was no sign of life - no movement and no breathing. [ 47 ] As he attempted to begin administering medication through Michael’s leg, Mr. Pickard noted mottling of the skin on Michael’s legs. This was one sign used by paramedics as an indicator that it is time to stop efforts to resuscitate. At 13:39, such efforts stopped. Michael was removed from the clarifier and turned over to the coroner.

Colin King [ 48 ] Michael Henderson’s work partner on August 16 th was Colin King. He testified that he has worked on-and-off with Springhill from 2003 to 2019. He had been working on the clarifier project. On August 16 th the crew consisted of himself, Eric Henderson, Michael Henderson, Clayton McKeil and Jason King as site supervisor. Following the morning meeting, Jason King assigned him and Michael Henderson to do clean up in the clarifier bowl. This included the hole.

The plan was to pour further concrete into the hole to raise the floor to the level of the pipe flowing in from the horizontal pipe running beneath the clarifier. Jason King did not direct which of them was to go into the hole. Colin King noted that, given the size of the hole in relation to himself, he had trouble getting in and out of the hole. Its depth was over his head (he testified to being over six feet tall). As a result, Michael Henderson volunteered to do the work inside the hole. Michael would put debris in the basket and pass it up to Colin King.

Colin King testified that there had been no safety procedures put in place for getting in and out of the hole.

[ 49 ] As the work of cleaning was progressing, there was water “trickling” into the hole from the underground horizontal pipe. Colin King talked to Jason King about this. Colin was directed by Jason King to take the plug down (Exhibit P5) and to insert it into the horizontal pipe and pressurize it to the level identified by the City. The plug (which had been used elsewhere on the project earlier) had been stored at the construction trailer. There was a discussion between Colin and Jason about the gauges.

There was the gauge on the plug hose and there would also be a gauge on the compressor used to inflate the plug. The gauge on the plug had sand and debris on its face. Jason King told Colin King to use both gauges and that way there would be a better chance of something close to an accurate reading of the plug’s inflation. Colin King brought the plug into the clarifier and handed it down to Michael. He testified that he told Michael to, ‘stuff it in as far as he could reach’. [ 50 ] Colin King had used this plug before at the UV building.

Stephen King had, on that occasion, given him instructions on how to install the plug. However, his evidence on this point was not at all clear or consistent. He testified that Jason King gave him no specific instructions for its use on August 16 th . He testified that the City had told ‘us’ to inflate to 25 psi. Once the plug was inserted by Michael Henderson, it was inflated. Once inserted and inflated, the steel end of the plug was facing toward Michael in the hole and would have been at his mid-body level. Colin King testified that Michael was probably standing in the hole as the plug was inflating.

It was not a quick process to inflate the plug. Colin King testified that he had not read any instruction manual for proper use of the plug, nor did Jason King instruct him to. Nor did he recall any instructions from Jason King to brace the plug. [ 51 ] After their lunch break, Colin King and the others received instructions from Jason King as to their work assignments for the afternoon. Mention had been made that there was a ‘test going on’, and that ‘water was running’. In cross examination, Colin King stated that, after lunch he knew water was going into the manhole.

Michael and Colin had been told by Jason King to finish up what they were doing, i.e., the clean-up in the hole. He and Michael returned to the inside of the clarifier. Apparently, there was still some debris left in the hole and Michael was going to get the rest of it out along with some of his tools. Colin King went to get a bucket and a grinder. As he was walking away from the hole, with Michael inside the hole without any safety harness, Colin King hears the plug let go. He rushes toward the hole and sees Michael’s head. He grabs onto Michael and tries to pull him up.

In doing so, he tore off Michael’s shirt and vest. Colin screams for help. As he looks in the hole, he cannot see the plug. He described how he could see the water rising and overflowing the hole. [ 52 ] Colin King testified that he had not received any confined space safety training. Nor was there any specific safety plan discussed relative to Michael being in the hole that day. He testified about working in a similar, but deeper hole, at the UV building project where he was in the hole with a plug inserted in an adjoining pipe.

Colin King testified that there was no safety plan in place in case he needed to be extricated from that hole in an emergency. Eric Henderson [ 53 ] Michael Henderson’s older brother, and fellow worker on the clarifier project, testified. He learned his trade as a carpenter by on- the-job training supplemented with courses arranged in various blocks. Eric had most of his early work in the construction industry through Springhill. He had completed WHMIS training and Fall/Arrest training.

Before working on the clarifier project, he had worked for Springhill on jobs at the TD Tower, UNB and the York Arena. [ 54 ] Eric Henderson testified that he was not aware of any training on confined spaces before the incident involving Michael. Nor was he aware of the Springhill Safety Manual or any specific safety plans of Springhill’s related to the clarifier project. Eric Henderson noted that there was no tripod over the hole where Michael was working and no known plan to evacuate him if needed. With that said, he acknowledged that safety on the job was ‘everyone’s responsibility’.

Nevertheless, and without singling out Springhill, he felt there was a general reluctance in the industry for workers to be proactive in raising safety issues out of fear that they would not be called back to work the next day. [ 55 ] August 16 th began as any normal day on the clarifier project. The group of workers met with Mr. King and received their assignments for the day. Mr. King assigned Michael and Colin King to clean out the hole to prepare it for an expected concrete pour. He described the hole as being approximately eight feet deep and four feet in diameter.

The pipe that entered the hole he described as being about half-way up on the inside of the hole. Eric Henderson was aware that there had been discussions between Colin King and Jason King concerning the gauge/regulator that was on the plug since it was obviously dirty or possibly damaged. He understood that Jason King was going to replace the regulator. Eric Henderson had seen the plug on the ground outside of the trailer that morning but had not seen it before. He was unfamiliar with how to use a plug.

He knew however, that its intended use was to stop the flow of residual ground water leaking into the hole where Michael and Colin King had been tasked with cleaning. From his experience in construction, Eric testified that carpenters would not be the trades using a plug of this type. That work would be for pipefitters. [ 56 ] Eric Henderson was unsure when the plug was inserted into the pipe, or by whom. He was aware that, during the morning, Michael was working in the hole and Colin King was working above it. Eric noted that there was no ladder to get in and out of the hole

and no tripod positioned above it. He testified that it was dangerous to have an elevated large amount of water on one side of the plug and nothing to support it on the other. [ 57 ] After returning to work following lunch, Eric Henderson testified that he heard ‘a loud bang’ and turned toward the hole and saw a fountain of water shooting out of the hole. Michael was in the hole and Colin King was yelling for help. Eric jumped over the wall, down the staging and rushed to the hole where he could see Michael’s hand sticking out. Colin King was trying to pull Michael out.

Eric got into the hole and went under water trying to give Michael air. He described it as ‘chaos’. He was using a shovel and a knife to try and puncture the plug which had pinned Michael against the wall. Eric estimated that it was about fifteen minutes before the emergency workers arrived and he was moved out of the way. [ 58 ] Eric Henderson testified that he was unaware if Springhill had a designated health and safety representative and that he only knew of Josh Lawrence as the person who worked in the Springhill office and bid on jobs. Cst. Sebastien Lee [ 59 ] Cst.

Sebastien Lee, of the Kennebecasis Police Force, was working a relief shift in Fredericton on August 16 th . He and his partner received a call at 13:02 to respond to a call concerning a workplace accident. He arrived four minutes later. When he arrived, he noticed a man standing at the hole trying to pull someone out by the arm. Cst. Lee assisted by trying to physically pull Michael out. Cst. Lee then tried to use a rope. Other first responders arrived and, at approximately 13:30, the plug was punctured, and Michael was removed from the hole. He was presumed dead. At 13:52, a Mr.

Fillmore arrived from WorkSafe NB and took control of the scene. This preserved the continuity of the scene for investigative purposes. Cst. Lee went to the hospital, where Eric Henderson had been taken, and formally shared the news that Michael had died. He also called Michael’s mother to tell her. Francois Boudreau [ 60 ] Mr. Francois Boudreau was, at the relevant times, an investigator with WorkSafe NB. He is an engineer by training and currently works with the Correctional Services of Canada.

With respect to the present matter, he worked with another WorkSafe investigator, Kevin Bennett, investigating the incident that took Mr. Henderson’s life. Mr. Boudreau recalled that, on August 16 th , 2018, he responded to the clarifier site by 17:00 that day. Other WorkSafe employees were already on site. Mr. Boudreau noted that the staging, which had been set up by Springhill to get in and out of the clarifier, had not been properly set up and was unsafe. He hired a different company to install a safer means to get in and out of the clarifier. Mr.

Boudreau took statements from various witnesses at the scene. [ 61 ] In addition, WorkSafe hired various companies to recover the items relevant to the accident and to do measurements and testing. As far as WorkSafe was concerned, the hole was considered to be a confined space. As part of Mr. Boudreau’s investigation, a tripod was set up over the hole and a person, attached by a harness to the tripod, went into the hole to recover the plug. For work in a confined space three persons were considered necessary for safe entrance to, and to work in, the hole.

One person communicated with the person who entered the hole and a third stood by to ensure the person working in the hole could be extracted. The person who entered the hole as part of the investigation was tasked with taking measurements and photographs of the scene. Mr. Boudreau obtained a ‘permit’ before commencing work in the hole. The plug that WorkSafe retrieved from the hole was turned over to Point of Origins Consultants (Mr. Gary Daneff) for evaluation. [ 62 ] As part of the investigation, Mr. Boudreau and Mr. Bennett interviewed Jason King.

A voir dire was held during the trial to determine the voluntariness of the interview and the statements made therein. The interview was recorded in full. It was determined by me, for reasons given during the hearing, that the statements and interview were deemed voluntary and that the recorded interview, and the viva voce evidence offered within the voir dire , would be admissible for the purposes of the trial. Mr. Boudreau and Mr. Bennett interviewed Mr. King and Mr. Bennett had given Mr. King warnings as to his right to say nothing, but if he did, it may be used in evidence. Furthermore, Mr.

King had been advised that he could get a lawyer if he so wished. Mr. King also testified that the recording was accurate. Jason King (Voir Dire) [ 63 ] Mr. King gave evidence as part of the voir dire . His voir dire evidence consisted primarily of statements of his made during the interview with Mr. Bennett and Mr. Boudreau. Mr. King also testified during the trial proper, and I will summarize below more directly his statements made during the interview. During his examination-in-chief, and during his cross examination, he made statements that

were, at times, different than answers he gave during his recorded interview. Again, these issues will be discussed further below. As I ruled at the conclusion of the voir dire , his interview and the statements coming from it, were voluntarily made, and the recording was accurate in capturing what took place and was said during the interview. Roberto Sgrosso [ 64 ] Mr. Sgrosso is employed by WorkSafe NB and is a Certified Industrial Hygienist and a Registered Occupational Hygienist.

The Crown asked that he be declared an expert qualified to give opinion evidence with regard to the identification of confined spaces. Having reviewed his qualifications as submitted by the Crown, and without objection from Mr. King, Mr. Sgrosso was declared an expert. [ 65 ] His duties at WorkSafe include assisting employers determine if a confined space exists on their worksites. In addition, he works regularly on the enforcement and application of Regulation 91-191 under the Occupational Health and Safety Act , SNB 1983, c. O-0.2 .

Contained within Regulation 91-191 is a definition of ‘confined space’ and, he testified, there are times when employers may be uncertain as to what is a confined space and what safety protocols are legally required for work in such spaces. [ 66 ] Mr. Sgrosso testified that he was requested by WorkSafe investigator Kevin Bennett to go to the clarifier site to determine if the hole, in which Mr. Henderson died, met the definition of a confined space. He visited the clarifier within a week of the incident. [ 67 ] Mr. Sgrosso testified at being perplexed as to why he was being asked by Mr.

Bennett to give an expert opinion on whether the hole was a confined space as the answer was, he thought, self-evident. A concrete hole eight feet beneath grade and three and one-half feet wide could not be considered as anything other than a confined workspace.

He was of this opinion based on various criteria including the dimensions of the hole, that work was being done at the bottom, the difficulty in establishing a means of rescue or extraction of a person from the hole, that it was enclosed in all respects other than the top, it was not intended for human occupancy, access into and out of the hole was limited and water had been trickling into the hole. He calculated that the hole could hold, by volume, 920 liters of water. [ 68 ] In this case, Mr.

Sgrosso noted, as I have said, that it was self-evident that the hole was partially enclosed, not intended for continuous human habitation, without a safe way to get in and out and, that any gas from the rest of the system could migrate toward the hole, being the lowest part of the system. As a result, there needed to be, pursuant to Regulation 91-191 , an assessment done to ensure the safety of anyone working in the confined space. That assessment must include testing the atmosphere in the hole, determining how many rescue workers would be needed on standby and to ensure safe breathing.

This assessment was required to be done before anyone entered the hole. [ 69 ] Pursuant to Regulation 91-191 , the supervisor on site must do the assessment or identify a person ‘competent’ to do so. Before entering a confined space there must be a procedure developed. All potential hazards must be ‘locked out’. There must be a designed rescue plan with a rescue team that is fully briefed. There needed to be rescue equipment standing by. There needed to be a person dedicated to keep their eyes on the person in the hole and able to communicate freely with them.

That person must also be able to extract the person in the case of an accident, typically by a harness attached to a tripod over the hole. In the present case, none of this was done by Mr. King. [ 70 ] Mr. Sgrosso testified that the hazard created by the water in the pipes should have been addressed by having two plugs in use as part of a ‘block and feed’ system. With the amount of water that was within the system, Mr. Sgrosso noted that he would not have had a person in the hole. In his view, it was ill-advised to do the leak testing with someone working in the hole. [ 71 ] Mr.

Sgrosso also noted that s. 263(1) of Regulation 91-191 set out the legislated requirements of an employer before anyone enters a confined workspace. I note at this point that there is no evidence of action taken by Mr. King (or Springhill) to comply with any of the legislated requirements in this regard. As Mr. King would later testify, he did not even know of the legislated requirements, having never read them. There had been no site-specific hazard assessment done. Gary Daneff [ 72 ] Mr. Daneff is a principal with Point of Origin Consultants Ltd. He is a professional engineer by training.

His work experience includes knowledge of the construction building codes at the Provincial and Federal levels. He has worked with fire protection systems

with particular knowledge of hydraulic systems and water pressure measurements. His company has experience in forensic investigations into collisions, fire and water related failures. His company develops the tests necessary for each project they work on. With regard to the type of pneumatic plug at issue here, Mr. Daneff has had no direct past experience. Nevertheless, his professional experience on issues related to the plug, and other work experience, was considered by me to be sufficient to qualify him as an expert in the installation, manufacturer’s instructions, use and the failure of a test-ball plug.

While I expressed at trial concern over the wording of the declared expertise, Mr. Daneff did have certain knowledge of what specifically occurred with the plug in this incident, and this was of use to the court. No other witness was offered to explain what happened to the plug to cause the incident.

Certain other aspects of his testimony, dealing with the proper installation of the plug, and the manufacturer’s warnings related to the use itself, were self-evident from reading the manufacturer’s instruction manual for its safe and proper use or, by just fully reading the information cast in metal on the head of the plug itself. [ 73 ] Mr. Daneff was retained by WorkSafe to investigate the circumstances as it related to the failure of the plug. After the incident, the plug was delivered to Mr. Daneff’s facility for analysis. He noted that, when it was delivered, there were five puncture holes in the plug.

He patched them before doing his own testing. He also calculated the volume of water contained within the horizontal pipe running from the bottom of the manhole, underneath the clarifier and exiting into the hole. This volume he estimated to be 18,000 liters. The manhole, being larger in size, but only estimated as being half full at the time of release, contained an estimated 14,000 liters. [ 74 ] Mr.

Daneff testified that the setting within which the plug was used, complied with the manufacturer’s instructions on the limits of its use (under proper inflation), i.e. the size of the pipe into which it was inserted, the inflated pressure and the amount of head pressure from the water in the manhole and the horizontal pipe. Mr. Daneff also testified as to the manner in which the plug was inflated prior to the incident. Some of the information on this process came directly from a meeting he had with Colin King as part of his investigation. [ 75 ] Mr.

Daneff reported that Colin King told him that on the morning of August 16 th , he inflated the plug within the pipe to a pressure of 25psi and then, around 09:45, he disconnected it from the compressor. Mr. Daneff testified that the connections from the air hose on the plug to the valves and gauges connecting to the compressor leaked – they were not airtight. As the air slowly leaked from the plug, being under pressure from the water that had built up in the pipes, it dislodged into the hole, trapping Mr. Henderson. [ 76 ] In addition to the leaking valve connections, Mr.

Daneff noted that there was a split where the air hose entered the plug but there was no way to determine if it existed before or after the incident. Mr. Daneff testified that, ‘all valves leak’, and that for the psi of the inflated plug to remain stable, it needed to be connected to the compressor at all times, with the regulated delivery of air as needed. [ 77 ] Mr. Daneff could not identify any factors in this particular case that would materially increase the likelihood of the plug releasing when it did.

As an example, if a solvent had been used to clean the pipe into which the plug was placed, that might create slippery conditions. [ 78 ] The manufacturer’s directions were that the air pressure within the plug be ‘actively’ monitored. This would be, Mr. Daneff testified, only possible with properly calibrated pressure gauges. The manufacturer also recommended that the plug be braced to prevent movement. The manufacturer’s instruction manual diagramed different bracing options.

In the present case, given the small area within which to work inside the hole, bracing would not have been possible while having a person working in the hole. Above all, the manufacturer recommended that no one should be working in proximity to the plug’s ‘danger zone’ when it was in use. Mr. Daneff expressed the view that once water was introduced into the manhole, while the plug was inserted, the ‘danger zone’ existed. The existence of the ‘danger zone’ while the plug was in use was repeatedly noted in the instruction manual. [ 79 ] In Mr.

Daneff’s opinion, the plug released into the hole due to the water pressure within the piping system acting on the plug that had begun to deflate from the required inflation rate of 25 psi. Jason King - Direct [ 80 ] I will say at the beginning of this review of Mr. King’s direct evidence at trial (being almost five years after the incident) that there was, when compared to the information he provided in his WorkSafe interview, discrepancies on certain points. Mr. King asserted that his current testimony is more accurate.

He testified that, at the time of the interview, he was still trying to mentally analyze what happened. Not enough time had passed. I reject that assertion as being counter to the general view that memory is clearer the closer one is to the incident in question. As time passes, memory can fade, become confused in one’s own mind or be influenced from discussions with others. Where there is material difference between his testimony before me, and his interview with WorkSafe, I rely on the interview being that it was, essentially, contemporaneous to the incident.

[ 81 ] Mr. King has worked in construction, essentially, his whole working life. He began with Springhill’s successor, Diamond Construction. His early working life also included time at NBCC, working in the logging industry and running his own business. Through his union, Mr. King had WHMIS and Fall Arrest training. Much of his work in the industry involved concrete. [ 82 ] Recalling back to late 2015, Mr. King testified that Springhill management, Brett Anderson and Josh Lawrence, offered him a promotion to supervisor. He expressed concern to them that he lacked sufficient experience.

He testified that their response was that he would get such experience over time. He testified that he was given no training by Springhill on how to be a supervisor. In January 2016, he was assigned as supervisor on a job at York Arena. Later that spring, the York Arena project stopped, and he was moved to the UV building project which had, by then, started construction. He took over as supervisor from Stephen King. [ 83 ] Mr. King testified that at the UV building project a subcontractor had been using a plug of their own to stop the flow of the river coming back up and into the UV building.

It remained in place for two months. Eventually, the subcontractor needed their plug back and so the City offered to loan one of theirs to Springhill. The plug was, Mr. King testified, just dropped off by the City at the UV building. Colin King installed it in a pipe in the UV building. This pipe was similar in size to the hole in the clarifier. A ladder was used to get in and out. There was no discussion, he recalled, about that space (in the UV building) being defined or classified as a confined space. Mr. King initially testified that at that stage, he had never heard that phrase, ‘confined space’.

I pause to note that, later in his testimony, he did say he was aware of the phrase, ‘confined space’. Eventually, Mr. King moved on to other projects that Springhill had underway. In late Fall of 2017, Mr. King was off work on leave. [ 84 ] In January 2018, Mr. King was assigned to the clarifier project as construction was, by then, underway. Flooding in January, which ultimately froze, resulted in the job coming to a temporary stop and Mr. King being sent to a job in Moncton. During the winter Mr. King went between various job sites as required. In February 2018, Mr. King met Mr.

Henderson for the first time as Mr. Henderson was on a co-op placement with Springhill. Stephen King had sent Jason King to do Mr. Henderson’s orientation. They met in a construction trailer on the clarifier project site. Mr. King walked Mr. Henderson around the site. Mr. Henderson was shown the muster station and where to find tools. Mr. King testified that they discussed the safety rules, safety protocol on site, emergency procedures, who had first aid training and the role of the Joint Health and Safety Committee (which was not active at that time). He also testified that he showed Mr.

Henderson where the Act , regulations and manuals were located in the office and advised him that if he wanted to read them, he could. He further testified that he would have advised Mr. Henderson of his right to refuse unsafe work. [ 85 ] In April 2018, conditions at the clarifier project were still not suitable to re-start work and Mr. King went to another Springhill job. By May, conditions had sufficiently improved and worked started again on the clarifier project. At that time, Stephen King returned as supervisor.

By early summer he left for another job and Jason King was given the supervisor’s position at the clarifier project. [ 86 ] Once Mr. King returned to the clarifier project as supervisor, he began to attend the bi-weekly site meetings. The purpose of these meetings was to address issues and keep the project moving. Minutes were kept. Leak testing of the water pipes associated with the clarifier was a topic discussed at more than one meeting.

Simply put, it would require filling the lines (pipes), let it sit for twenty-four hours to cure, take a measurement, let it sit another twenty-four hours, and then measure again. He recalled that in one meeting the use of the City’s plug for that purpose was discussed. It was Springhill’s responsibility to do the test. He did not recall if the need to install bracing for the plug had been discussed at any meeting he attended. Mr. King testified that the manhole had been leak tested earlier by placing the plug into what has been described as the horizontal pipe, at the point where it met the manhole.

Colin King installed the plug on that occasion. Later the pipes were cleaned by a subcontractor. Mr. King did not know if a cleaning fluid was used. [ 87 ] Mr. King recalled that during the site meetings in July and August 2018, safety issues were discussed including the concerns over safety vests not being worn by employees, employees walking along the top of the clarifier without fall protection and that a concrete truck had backed into a power pole.

An incident Report Form was completed for this latter incident. [ 88 ] As with most other days on the clarifier work site, the morning of August 16, 2018, began as usual. He met with Clayton McKeil, Colin King and Eric and Michael Henderson. Mr. King testified that he assigned their work for the day. He testified that he instructed Colin King that the clarifier floor needed to be cleaned and, “ if they didn’t mind ”, getting the hole cleaned out.

I will note here that the degree to which such wording (“ if they don’t mind ”) may have been used in testimony to infer that Colin King and Michael Henderson had a choice to clean out the hole, I reject that suggestion. In my view, there was no doubt that Colin King and Michael Henderson were directed by Mr. King, amongst other things, to clean out the hole. It needed to be cleaned in preparation for another concrete pour. [ 89 ] Colin King and Michael Henderson began working at cleaning out the hole as directed. Colin came up out of the clarifier at some point before the 09:45 break to tell Mr.

King that there was water trickling into the hole from the horizontal pipe leading from the manhole. Recall that the pipe was protruding about halfway into or across the 42-inch diameter hole in which Mr. Henderson was

working. Mr. King testified that Colin King left the clarifier and, telling Mr. King that the continuing trickle of water was making the work in the hole difficult, asked if he could use the plug. Mr. King testified that he and Colin agreed to the use of the plug and discussed the need to clean the pipe and to inflate the plug to 25 psi. Mr. King testified that he thought Colin would be the one to install it having done so before in the manhole and the UV building. Mr. King said he had never installed one. He and Colin discussed the gauges, one of which looked dirty. Mr.

King acknowledged that typically there needs to be a gauge between the valve that controls the airflow and the line into the plug. The plug was installed. He went on to say that, having seen Michael working in the hole, he asked Colin why Michael was working in the hole. Colin’s reply was that he would not fit in the hole. [ 90 ] I pause to note that even though there is by mid-morning, discussions around using the plug to stop the water trickling into the hole, there was not any mention to Mr. Henderson of a leak test to be done.

As the evidence indicates, the plug’s only known intended use by that stage was to stop the trickle of water. [ 91 ] Mr. King testified that, around mid-morning, he asked Colin when he expected he and Michael would be finished. Colin’s answer was, Mr. King testified, ‘around lunchtime’. Believing they would be done by lunch, Mr. King talked to Mr. DeMerchant about doing the leak test while the plug was already in place. He also said to Mr. DeMerchant that he would come in and do the required measurements on the Saturday as needed since Mr. DeMerchant was going to be unavailable to do them on the weekend. Mr.

King stated that around 10:45 it had been decided to proceed with the leak test. [ 92 ] To proceed with the test Mr. King needed Mr. Sewell to arrange to get a hydrant turned on and so he texted him at 11:12. Mr. King did not remember a reply but, shortly thereafter, Mr. King said he came out of his office in the trailer and saw that the hose had been connected to the hydrant and the hydrant had the wrench on top signifying he could turn on the flow as needed. This was, Mr. King said, around 11:40 to 11:45. [ 93 ] Mr. King then turned on the water and placed the hose in the manhole at 11:52.

Because of the structure of the nozzle on the end of the hose when he put it in the manhole, it began flailing around under the pressure in the hose. He stopped the flow, removed the nozzle, and then put the hose back in the manhole and turned the water back on. Water is now flowing uninterrupted into the manhole which is connected to the horizontal pipe leading into the hole where it is blocked by the plug. Mr. King testified that, as he then looked around the job site, and because there was water flowing into the pipe, he told his crew to go to lunch a few minutes early. [ 94 ] At 11:56, Mr.

Henderson can be seen on CCTV video leaving the clarifier for lunch. He and the other workers take their half-hour lunch break. During the break, Mr. King can be seen on video monitoring the manhole and monitoring the clarifier. At around 12:17 Mr. King is in the clarifier. He testified that he was going to see how the plug was holding and check the readings on the gauges. He noticed that there was still debris, a bucket and tools in the hole. He testified that he was not worried about the final clean because as he stated, “there was very little left”. [ 95 ] The CCTV video shows Mr.

King talking to Colin King at 12:33. Mr. King testified that he is telling Colin that there is no need to go back into the hole because the concrete pour was not going to happen until the following week. From that time forward, he has no further discussions with Colin King about his leak test plans. He testified that he did see Mr. Henderson after lunch on the clarifier floor but that he did not see him in the hole after lunch. This may be so due to the depth in the hole Mr. Henderson was working. Mr. King continues flooding the pipe system. At 12:51 he hears hollering coming from the clarifier.

He turns off the water supply at the hydrant. He rushes into the clarifier to see what is going on. He can see Clayton, Eric and Colin, but not Michael. He testified he knew the plug needed to be immediately deflated. He looked at the compressor and the line to the plug, which he testified, was still attached. He threw his knife to Eric Henderson in hope that the line could be cut or to stab at the plug to deflate it. Nothing worked. He turned off the compressor as it was still connected to the plug.

He noted that the way the gauges had been sequenced on the line was not the way his experience said it was typically done. They were, he testified, set up backwards. [ 96 ] During cross examination Mr. King accepted that, as supervisor, he was responsible for the safety of the crew under him. He had a long family history in the construction industry, and he knew the basic role of a supervisor/foreman.

He testified that he knew that his responsibilities included identifying safety risks, coordinating on-site safety and that the overall responsibility for safety, either from equipment or environmental risks, fell to him. In his on-site office were safety manuals but he could not specifically identify any. These on-site manuals included the job specific manual and the Springhill Safety Manual. There were other forms and reports. Mr.

King testified that if he had any questions regarding safety or the operation of equipment he would call Springhill’s safety officer, Josh Lawrence. [ 97 ] With respect to the safety manuals, Mr. King testified that he is ‘not a reader’ and had not read any of them. He said he may have looked through the Springhill Manual but did not read it. Furthermore, he stated that he did not know how to identify a confined space but knew that there were specific things that needed to be done once a confined space was identified.

[ 98 ] Mr. King testified that once he was promoted to the position of supervisor, he did nothing to inform himself of what was required of him. He said that he was never told by his superiors that he needed to do anything. During cross examination, he was directed to a copy of the 2018 Springhill Safety Manual – a copy of which he acknowledged was in his on-site office but that he had never read. Contained in that Manual is a definition of a ‘confined space’ and certain requirements regarding work in a confined space: 1. A work area shall be treated as a confined space when:

a) There is only one exit or when the exits are not easily accessed for emergency escape.

b) Because of construction contents or work activity, which in turn causes the accumulation of hazardous gases, vapors, fumes, or dust resulting in a level that is immediately dangerous to the life and health or in which case an oxygen deficient level could be created. 2. No employee shall enter a confined space such as a manhole, shaft, tunnel, etc., unless a proper air test is conducted to ensure that the atmosphere is free of any dangerous gases, vapors, dust or fumes and that sufficient oxygen is available. 3.

No employee shall conduct an air test unless they have been properly instructed in the correct procedure and that any required certification is obtained. 4. When working, the space shall be continually monitored for explosive or toxic gases and or ventilated to prevent the accumulation of gases and oxygen deficient atmospheres. 5. When work is performed in a confined space, an employee equipped and qualified to render assistance shall be appointed to remain outside and in contact with the employee(

s) in the confined space and shall not enter the space without first notifying another person. [Exhibit P18, Tab 2.] [ 99 ] Mr. King acknowledged he had read none of that information. Nor had he read the portion of the manual which sets out the expected duties and responsibilities of a supervisor. These specified duties are: 1. Promote safety awareness 2. Establish safe work practices 3. Instruct workers 4. Correct unsafe practices 5. Set a good example 6. Correct unsafe conditions 7. Report injuries 8. Enforce safety rules 9. Inspect for hazards 10. Investigate incidents 11. Ensure proper maintenance 12.

Conduct toolbox meetings 13. Comply with regulations 14. Identify required training [ 100 ] Mr. King was, at times, unclear in his testimony whether he knew what a confined space was or whether one existed at the clarifier site. However, he did acknowledge during cross-examination that it [the hole] ‘seemed quite logical that it would be’.

While he acknowledged that he had not specifically read the Act or regulations , he testified that he knew he was responsible to provide information about safety issues to his workers; that he was required to provide instruction necessary to ensure a safe workplace; and that he was required to supervise activity on-site to ensure worker safety.

He acknowledged it was his responsibility (along with others) to oversee safety on the project and that confined space safety must be observed. [ 101 ] With regard to the document entitled the Health, Safety & Emergency Plan of Springhill Construction Limited Established for the Wastewater Treatment Facility Upgrades Phase 3 – New Clarifier , like other reference manuals available to him, he acknowledged he had not read it. He did not know that, contained therein at p. 13, was the direction that:

Confined Space Confined Space entry Procedure must be used for any employee who must enter a confined space environment, to perform any work or for any inspection. A confined space means an enclosed or egress or egress ( sic ) and may become hazardous to an employee entering it. Only properly trained, equipped and supervised workers shall enter confined spaces. [Ex. P17] [ 102 ] As noted, the evidence before me included an audio recording of an interview Mr. King voluntarily gave to WorkSafe investigators, Mr. Bennett and Mr. Boudreau.

I have already concluded that where there is conflict between statements made during the interview and his testimony before me, I accept the information he provided at the time of the interview for reasons I have already stated. My intention in the following

section of these reasons is to highlight parts of the interview relevant to aspects of the charge against him. [ 103 ] In an answer to a general opening question of the interview he gave an answer that included the following statements: … Mike Henderson was, ahh, in the bottom of the hole cleaning some debris out, we were getting ready for a concrete pour the next day. This was, ahh, shortly after lunch, before one o’clock, I believe. … And, ahh, anyways, they, were moving debris from the bottom of the, from the area to get ready for [the] concrete pour.

Ahh, at the same time, that pipe that was plugged off – there was a manhole that was still needing a, a water leak test done on it. And ahh, we were partially filling the pipe until they were finished out there and then we were going to continue on with our leak test. … Q. So what was Michael assigned to at the beginning of the shift? A. Ahh, initially to get that plug installed in the pipe and ahh to get the debris cleaned out of the hole. [underlined emphasis added in the above and in further quotes below] [ 104 ] Despite the above recorded answer, Mr.

King testified that the answer then given was wrong in that Mr. Henderson was not assigned to install the plug and there was no need to put the plug in first thing. He accepted during his testimony that there was a difference, noting that what he says now on that point is ‘completely different from what he said back then’.

But from his answer as recorded in the quote above, it is clear that, at least at the time of the interview, his recollection was that the concrete pour was to be the next day (not the next week), that he had commenced the leak test and was continuing it while he knew Michael Henderson was finishing up his work in the hole. He went on to state in the interview: “So initially I guess they [Colin King and Michael Henderson] would have been pumping water out in order to get it low enough to put the plug into the pipe” … Q. Okay, so they, so their job, get the water out first, then clean up the bottom of the pipe? A.

Get the water out, install the plug to keep more water from coming in and then clean the bottom out to prepare for the concrete pour. Q. Okay, no problem, so that was their job and they, remained in that area? A. Yes [ 105 ] With regard to the instructions by Mr. King to Colin King and Michael Henderson regarding the installation of the plug, Mr. King answered as follows in the interview: Q. Okay, did you oversee this? Did you make sure they both knew what they were doing? Is there, is there any start instructions you gave them? A. I did give them their instructions. Q. And they were? A.

Clean the, pump the water out, out of the area, remove any debris from the pipe, install the plug, inflate to twenty-five psi as per the, we always do and basically that was it.

[ 106 ] Again, Mr. King says that his answers then were wrong and that he is clear now that he did not give any such instructions. To the best of his ability, he testified, he was trying to give WorkSafe truthful answers as he best remembered on that date. [ 107 ] Mr. King explained during the interview that there were no procedures developed for the installation of the plug nor were there any hazard assessments done before Mr. Henderson went into the hole. Q. Do you have any hazard assessments documented for, you know? Or is there a procedure for, for this? A. Ahh. Q. To put this in – to install it? A.

Not that I can remember. [ 108 ] That Mr. King knew Mr. Henderson was initially in the hole is not disputed. Mr. King knew a ladder was used by Mr. Henderson to get into the hole and then the ladder was pulled up. Returning to the interview: Q. Okay, so is Colin looking after this part of it? And Michael staying down in the hole? A. Yes Q. Okay, how did Michael get in the hole? A. A ladder. Q. A ladder, okay, and then once he was down there? A. I’m assuming they pull the ladder out. [ 109 ] Mr. King stated in the interview that he knew that men were in the hole as he began filling the manhole for the leak test.

Mr. King: Umm, we were just, we weren’t going to totally fill it until the guys came out. We were just getting a head start on it, takes a lot of water and a lot of time to fill and I started to fill it and. [ 110 ] As to whether Mr. King knew Mr. Henderson returned to the hole after the lunch break, Mr. King testified that he did not know. During the interview, he stated the following: Q. So, when the, did you see Michael and Colin go back to the area to continue working after their lunch? A.

Ahh, I was talking to them while they were in the clarifier, I can’t say for certain if I was talking to them after he was in the hole or not . I’m not a hundred percent clear on that. Q. Did you know Michael was in, was in there after lunch? A. I knew that he had more work to do, yes. Q. He had more work to do, okay, so he continued doing the job that you asked, that you told him to do? A. Yes. Q. And you continued running the line? A. Yes. [ 111 ] As noted earlier, during his testimony before me, Mr. King denied knowing that Mr. Henderson was in the hole after lunch.

As far as he was concerned, he had told Colin King and Michael Henderson to move on to other tasks. He testified that he specifically directed Colin King (who was to tell Michael) not to finish the work in the hole that afternoon. This instruction, if given as he testified it was, seems to be at odds with the reality that Mr. Henderson, after lunch finished at around 12:30, was still in the hole approximately twenty minutes later. Mr. King acknowledged that he never told Mr. Henderson that he had begun to flow water into the piping system for leak test purposes. Mr.

King also acknowledged during his testimony that it would be dangerous to be in the hole while there was a full leak test going on. Yet, he testified that he told none of his workers that he had started the leak test, but he knew Mr. Henderson was in the hole. [ 112 ] Mr. King was also asked during the WorkSafe interview what his plan was in the event of an emergency inside the hole:

Q. Okay, now, you have a worker in the hole, you’re the supervisor, not only would I ask you what is your emergency plan to get somebody into the clarifier, what would be your emergency plan to get somebody out of the hole? A. I know when I was in the hole you could reach the top to get out. So I had a worker there who should have been able to grab him. Q. Didn’t work out that way. A. No it didn’t. Q. Did you have a plan in place, an emergency plan in place? A. I didn’t even foresee that. [ 113 ] As noted, Mr.

King affirmed that the emergency plan he had in mind for an incident in the hole was that there would be someone there who could pull a person out. This was the extent of his understanding of what was needed to fulfill his duty to keep his employees safe. During his interview he discusses his responsibility to his employees: Q. The reasons why I am asking these questions is that you are the supervisor to the site. A. Yes. Q. You know, your responsibility is to make sure they are safe. A. Yes. [ 114 ] Mr.

King’s efforts to inform himself on the dangers of working with the plug were limited to his reading of the metal plate on the plug – although he said he did not recall reading it completely. He did not read the manufacturer’s instruction manual for the use of the plug as illustrated in the following excerpt from his interview: Q. Okay, And when the plug gave way, for whatever reason it gave way for, ahhh, the manufacturer’s specs do say in the hazards that no one is to be in the hole, you never saw anything like that or you don’t? A. I don’t recall reading it. Q. You don’t recall reading it?

But you did see the manufacturer’s specs? A. I read the ball. Q. You read the ball? Okay, that, that was it? A. Yeah. [ 115 ] I note that embossed on the metal head of the plug, which Mr. King says he had referred to or partially read, are the words, “CAUTION: MUST READ SAFETY BOOKLET BEFORE USING - MUST STAND CLEAR WHILE IN USE ”. His focus on looking at the metal head he said, was limited to identifying the required psi reading. ARGUMENT AND ANALYSIS [ 116 ] All parties agree that the hole in which Mr.

Henderson was working, at the time of his death, meets the definition of a confined space in the legislation in effect at the time of the incident. And all parties agree that, as a supervisor, Mr. King was in a position to direct the work of the employees under him and had a legal duty to take reasonable steps to prevent bodily harm to his workers, arising from that assigned work. This captures the language of s. 217.1 of the Code . With that said, Mr.

King’s counsel notes that the language of s. 217.1 is subject to scrutiny for compliance with the Charter . [ 117 ] The parties also recognize that this case calls for consideration of s. 219 of the Code. Moreover, the parties also agree that the case of R. v. Javanmardi , 2019 SCC 54 , will be the prime authority, yet in concert with others, for my co

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