Criminal charges in Fredericton workplace death a 1st for New Brunswick

A Fredericton construction company has become the first employer in New Brunswick to be charged criminally in the death of a worker, according to WorkSafeNB.

Springhill Construction Ltd., and a former supervisor, Jason King, 43, of Lower Hainesville, were each charged July 15 with criminal negligence causing death in connection with a fatal workplace incident at the city's wastewater treatment facility on the north side two years ago.

Michael Anthony Henderson, 18, was working on a construction project at the Barker Street facility when he was killed on Aug, 16, 2018.

"It's the first time criminal charges have been pursued in New Brunswick for a workplace incident," WorkSafeNB spokesperson Gillian Graves said in an email.

No information has been released about what happened at the plant, where a construction crew was installing a secondary clarifier, a settling tank where liquid waste or sewage is held.

Springhill Construction owner/operator Geoff Colter did not respond Friday to a request for an interview.

WorkSafeNB president and CEO Doug Jones said only about 30 people across Canada have been charged under the so-called Westray Law since it took effect 16 years ago.

"So to have people in New Brunswick charged under that is a pretty big deal," he said.

The 2004 amendments to the Criminal Code established rules for attributing criminal liability to organizations, including corporations, for the acts of their representatives; and established a legal duty for all persons directing the work of others to take reasonable steps to ensure the safety of workers and the public.

The changes stemmed from the May 9, 1992 disaster at Westray Mine in Pictou County, N.S. Twenty-six miners lost their lives when a buildup of methane gas and coal dust ignited and caused an explosion.

Prior to the explosion, several safety concerns had been raised by employees, union officials and government inspectors.

Springhill Construction, King and the City of Fredericton were all initially charged last year under the Occupational Health and Safety Act.

The provincial act contains legal requirements that must be met by all New Brunswick workplaces.

The company was charged with five counts alleging failures to take reasonable precautions to ensure employee safety on the site, while King was charged with one count, and the city, as the contractor, was also charged with one count.

"The Crown went forward with a criminal charge for the employer and supervisor," but not the city, said Graves.

All of the Occupational Health and Safety Act charges were withdrawn when the criminal charges were laid, she said, directing further inquiries to the Crown's office.

Back to court next month

Hilary Drain, regional director of public prosecutions, declined to comment, as the matter is before the courts.

Department of Justice and Office of the Attorney General spokesperson Paul Bradley also declined to comment.

The criminal investigation was conducted by the Fredericton Police Force.

"The decision to launch a criminal investigation (vs OHS) would have been determined through the investigation and in consultation with WorkSafeNB," force spokesperson Alycia Bartlett said in an email.

"Since the matter is before the courts, there isn't much we are able to add," she said.

Springhill Construction and King are scheduled to return to Fredericton provincial court on Sept. 21 at 10 a.m. to enter pleas before Judge Julian Dickson.

Criminal negligence causing death carries a maximum penalty of life in prison.

Coroner's inquest pending

There will be a coroner's inquest, said Public Safety spokesperson Coreen Enos. The date and location will be announced once those are confirmed, she said.

A coroner's inquest is mandatory when a death occurs at a construction site.

Enos did not immediately respond to a request for comment about why an inquest has not yet been held.

Officials said two years ago one would be held.

Henderson had graduated from Fredericton High School just a couple of months before he died.

One of his best friends, Jenna Crocker, previously told CBC News he "had a heart of gold," loved everybody for who they were, and "was always happy and cheerful."