Company, foreman headed to trial on safety charges
An Ontario company and a former foreman have pleaded not guilty to a dozen regulatory charges under Nova Scotia’s Occupational Health and Safety Act in connection with a fatal mishap at a Dartmouth construction site in March 2018.
The provincial Labour Department laid the safety charges against Insulated Panel Structures, based in Waterdown, Ont., and Jeff Gooch of Halifax in January 2020.
One month earlier, police had announced that Gooch had been charged with criminal negligence causing the death of Brandon Alcorn, 22, who died from head injuries after he fell from the roof of the Kent Building Supplies store in Dartmouth Crossing on March 13, 2018.
The regulatory charges were put on hold in Dartmouth provincial court pending the outcome of the criminal case.
The criminal trial concluded this past December in Nova Scotia Supreme Court, with Justice Timothy Gabriel finding Gooch not guilty.
After reviewing Gabriel’s decision, the Crown decided not to appeal the acquittal.
The parties then turned their attention to the safety charges, which were back in provincial court Tuesday for the entering of pleas.
The Labour Department alleges IPS, as Alcorn’s employer, failed to ensure he had valid fall-protection training, failed to establish a written fall-protection plan, and failed to ensure fall-protection gear was used on the day of the fatality and three earlier dates.
Gooch, who was Alcorn’s supervisor, faces four charges of failing to make sure an employee under his direction wore fall-protection gear while working at heights. It’s also alleged he did not have up-to-date training in fall protection and gave false information to a labour investigator two days after the mishap.
Lawyer Brad Proctor appeared on behalf of IPS on Tuesday, while Gooch told the court he is representing himself.
After both defendants pleaded not guilty, Judge Brad Sarson scheduled the trial for six days beginning next Oct. 21.
Crown attorney Alex Keaveny said he plans to call evidence from 10 or 11 witnesses.
Gooch, Alcorn and another worker were installing weatherproofing membrane on the walls of the tower entrance when Alcorn walked backward off the edge of the roof and fell 18 feet, or about 5.4 metres, to the ground.
The Crown alleged at the Supreme Court trial that Gooch’s supervision of the worksite, and specifically of Alcorn, was criminally negligent and led to the death.
‘TRIPARTITE ANALYSIS’
The judge, in his decision, said that before entering a conviction for criminal negligence, he had to conduct a “tripartite analysis.”
“Specifically, I must be satisfied beyond a reasonable doubt that the accused undertook an act, or omitted to do anything that it was his legal duty to do; that the act or omission caused the death of another person; and that the accused's conduct constituted a marked and substantial departure from the conduct of a reasonable person in the accused’s circumstances,” Gabriel explained. “If I have been left in doubt with respect to any of these criteria, I must acquit.”
At the time of the incident, Alcorn was wearing a harness line but was not wearing fall-protection equipment.
An occupational health and safety officer with the Labour Department testified that any time work is done above a height of 10 feet, the OHSA requires that fall protection be implemented.
However, Nova Scotia does not have a required minimum distance that workers must remain back from an unguarded edge while not tied off. The officer said he had been to hundreds of job sites where workers had not been using proper protection.
“Indeed, failure to comply with the relevant OHSA regime, even if it had been established, does not necessarily equate to a ‘marked and/or substantial’ departure from the conduct of a reasonable person in Mr. Gooch’s circumstances,” Gabriel said. “I have little to no evidence before me as to what ordinary industry standards would have required in these circumstances, in any event.”
The judge said there was no job-related reason for Alcorn to be closer than 10 feet from the edge, which would require him to wear fall-protection equipment as per his employer’s standard.
According to a co-worker, Alcorn had performed the same tasks the previous day “without any apparent difficulty” and appeared to keep the required distance from the edge of the canopy.
“Mr. Alcorn knew what the workplan was,” Gabriel said. “He had the appropriate fall-protection training, received ... orientation, and, among other things, knew that he had the right to refuse work which he considered to be unsafe.”
THC FOUND IN BLOOD
Toxicology evidence showed delta-carboxy THC and delta-9 THC was found in samples of Alcorn’s blood that were taken nearly five and a half hours after the fall.
Dr. Neal Sutton testified that there is no acceptable level of delta-9 THC in a worker’s blood when performing tasks such as working at heights, as it can affect balance, field of vision and awareness of one’s surroundings.
While he couldn’t say for certain that Alcorn was impaired when he fell, Sutton said he believed he was impaired.
“I conclude that it is likely that his intoxication caused him to depart significantly from the route which his actual work duties ought to have required, a route to which he appeared to have no difficulty adhering the day prior,” Gabriel said.
“Mr. Alcorn’s conduct was so grossly inappropriate as to have been virtually unforeseeable on the accused’s (or anyone else’s) part. It would have had the effect of severing the cause of the death from Mr. Gooch’s act or omission (if I had concluded that there was one).”
The judge said the evidence did not satisfy him of Gooch’s guilt beyond a reasonable doubt.
“In fact, … I have been left in substantial doubt with respect to virtually all of the criteria which the Crown was required to prove,” he said. “Accordingly, an acquittal is entered.”
Dr. Neal Sutton testified that there is no acceptable level of delta-9 THC in a worker’s blood when performing tasks such as working at heights, as it can affect balance, field of vision and awareness of one’s surroundings.