By Ryan Conlin and Jeremy Schwartz
A New Brunswick Court has issued one of the most significant Criminal Code judgments in an occupational health and safety matter in recent years.
Brief Summary of the Facts and the Charge
The accused was employed as a site supervisor on a municipal construction project. Tragically, a worker died while he was working in a confined space, when a rubber plug that was holding back 32,000 litres of water let go from its position. Tragically, the worker drowned when the water was released.
The Supervisor was charged with criminal negligence causing death, primarily on the basis that he failed to implement any of the requirements for confined space entry set out in New Brunswick’s Regulation 91-191, under the provincial Occupational Health and Safety Act, SNB 1983, c. O-0.2 (hereinafter “OHSA”).
Burden of Proof in Criminal Cases
It is important to appreciate that the burden of proof on the Crown is considerably higher in a criminal prosecution than in a case that proceeds under provincial occupational health and safety legislation. In an OHSA prosecution, the prosecutor need only prove that the contravening act or omission occurred (i.e., lack of compliance with the confined space provisions). Once the contravention is proven, the burden shifts to the defendant to prove reasonable precautions were taken to prevent the contravention (known as “due diligence”). By contrast, in an OH&S criminal negligence case, in addition to proving the contravening action or omission, the Crown must also prove beyond a reasonable doubt that the defendant’s actions represented a marked and substantial departure from those of a reasonable site supervisor in the circumstances.
Meeting this high burden has been challenging for the Crown in other serious cases.
Brief Summary of Main Arguments at Trial
The Crown’s theory of liability in this case was rather straightforward. It asserted that the Supervisor failed to comply with the provisions under Regulation 91-191 related to confined spaces. It should be noted that the OHSA in New Brunswick states that a “supervisor” is an “employer” and subject to the same obligations as an “employer”. It is difficult to say what role this unique legal structure had on the ultimate outcome.
There was no dispute between the Crown and the Supervisor that the confined space provisions were not complied with. It was argued that the Supervisor assigned the worker to work in a confined space and then turned on a hose which resulted in the worker’s tragic drowning death.
The Crown asserted that the evidence established that the Supervisor knew or ought to have known the worker was in the confined space when he turned on the hose, thus creating a hazard that ultimately resulted in the worker’s death. It submitted that the evidence showed the Supervisor knew that it was dangerous to have a worker in the confined space during the time at issue.
The crux of the Supervisor’s argument was to essentially “blame the boss”. He asserted that he was not given any effective training by his employer in his responsibilities as a supervisor and, more significantly, he was not given any training in confined space requirements. The Supervisor was provided with training manuals from his employer that addressed the confined space issue, but he did not read them. The Supervisor asserted that various other individuals were more directly responsible for the worker’s death.
The Decision
The Supervisor was convicted based on his non-compliance with the OHSA confined space provisions, and the Court held that his non-compliance represented a marked and substantial departure from the standard expected of a reasonable site supervisor.
The Court found as fact that the Supervisor did not receive any specific health and safety training from his employer. We are frankly shocked that in this era of enhanced safety compliance, an employer working on a public works project would employ a supervisor with literally no training beyond being given manuals he never read (as the employer was not party to the proceedings, it is unclear whether anyone challenged this assertion).
However, the Supervisor’s lack of training was not the end of the matter. In what we believe is one of the most important takeaways from this decision, the Court held (at para 173) that every person “…regardless of his or her professional training, is required to act in accordance with the standard expected of a reasonably prudent person in the same circumstances.”
The Court stated (at para 172),
In my view, the standard expected of a reasonable site supervisor on a construction site of this type must include, at a minimum, that the supervisor had familiarized themselves with the legislated duties that were binding upon them as set out in the Act and the Regulations. Construction sites, by their nature, contain hazards and can be dangerous (as this incident so tragically proves) and the legislative scheme is meant to reduce and, if followed, hopefully eliminate, that risk. In addition, one should expect that the reasonable supervisor would have familiarized themselves with any site-specific safety plan. Furthermore, the reasonable site supervisor would have familiarized themselves with the basic manufacturer’s instructions regarding the safe use of equipment used on the site.
These are the basic, fundamental elements of what I find to be the minimally acceptable standard of conduct for a supervisor in the circumstances of Mr. King. I use the phrase ‘basic fundamental elements’ because, in my view, any failure to meet those basic fundamental elements would, by its very nature, represent a marked and substantial departure from this acceptable minimum standard.
In other words, the Court held that a reasonable supervisor would ensure that they were familiar with the OHSA and the site-specific plan and OHSA requirements regardless of whether their employer had provided any formal training. There was no evidence that the Supervisor turned his mind to any specific actions to protect the Worker. The actions of the Supervisor were found to be a marked and substantial departure from those of a prudent supervisor, so he was convicted.
We understand that the Supervisor will be sentenced in September.
Our Take
This case has made it clear that supervisors who wish to raise a “blame the boss” defence, and suggest that their lack of training from their employer relieves then of responsibility for their own negligence, will face an uphill battle in criminal cases involving wanton and reckless disregard for worker safety.
The Court made it clear that construction supervisors (and inferentially all supervisors) have an obligation to familiarize themselves with OH&S legislation and the employer’s written policies and procedures. The Court found this obligation arose irrespective of an employer’s own training obligations under the OHSA.
This finding corresponds with a well-known Ontario OH&S prosecution, where a Court rejected a worker’s defence in a fatality case that was largely based on his employer’s non-compliant health and safety system (See The Queen v. Campbell, [2004] O.J. No. 129 at paras 86 to 90).
The Court made the critical finding that an assessment of knowledge of the law and the employer’s procedures represent the “basic fundamental” elements of a being a supervisor. These elements are not dependent on training from the employer or any actions by the employer to ensure that the supervisor actually reviewed the policy documents provided by the employer. We have little doubt that the fact that the hazard would be relatively obvious to virtually anyone and the lack of virtually any attempt to protect worker safety played a significant role in the decision.
Clearly, this case represents an important reminder to supervisors of their own independent and concurrent obligation to ensure that they are familiar with the law and their employer’s procedures. Particularly in situations where the hazard is obvious, Courts are not often going to give effect to a “blame the boss” defence.
Lastly, we wish to remind employers that liability under the Criminal Code is assessed individually for each defendant. We have little doubt that a Court would be prepared to find that failing to provide training to a construction supervisor represents a marked and substantial departure from what would be expected of a prudent employer. Where the lack of training provably caused a worker’s death, the employer (and possibly the officers and directors) could be found criminally liable, and face conviction alongside their derelict supervisor.
Please join us on September 8, 2023 for a complimentary webinar at which we will discuss the implications of this decision and others in greater detail, as well as practical due diligence considerations.
For more information, please contact:
Ryan J. Conlin at [email protected] or +1416-862-2566
Jeremy D. Schwartz at [email protected] or +1416-862-7011
