Company ordered to create $100K education fund in memory of teen who died on jobsite

A judge has ordered Springhill Construction to put $100,000 toward an education fund in honour of a Fredericton teenager who died working at a company jobsite.

Springhill has 30 days to set aside the money for the Michael Henderson Carpentry Bursary, named for the 18-year-old who died while working for the company on a construction site in Fredericton in August 2018.

The sentence was issued in Fredericton on Friday by Chief Judge Jeffrey Lantz of the P.E.I. provincial court, who was brought in to adjudicate the case.

"Whatever is done here today in court does not bring back Mr. Henderson," Lantz said.

"The proposal will allow for something positive to come from this incident. Mr. Henderson's bursary will be a reminder of the importance of workplace safety, and the tragedy that can result when workplace safety is taken for granted."

Lantz's sentence aligned with a joint recommendation submitted earlier in the morning by Crown prosecutor Christopher Lavigne and defence lawyer Clarence Bennett.

Lantz said mitigating factors in the sentence were Springhill Construction's earlier guilty plea to the charge under the Occupational Health and Safety Act.

He also noted the company had no prior convictions under the act, which sets out safety rules employers across the province must follow.

Facts of the case

Henderson was employed by Springhill Construction, and was working on a job at the City of Fredericton's Barker Street sewage treatment plant, which involved constructing a large concrete pool-like structure, known as a clarifier.

On Aug. 16, 2018, Henderson was asked by Springhill Construction supervisor Jason King to work inside a hole at the centre of the clarifier, which measured eight feet deep, and two feet wide.

Jason King, a former supervisor with Springhill Construction, was sentenced to three years in prison for criminal negligence causing Michael Henderson's death. (Ed Hunter/CBC)

At one point in his work, he was instructed to install a large pneumatic pipe plug into a hole that ran horizontally from the bottom of the hole to the bottom of an adjacent manhole.

King subsequently began using a hose to pour 32,000 litres of water into the manhole to ensure the pipe between the manhole and the hole at the centre of the clarifier wasn't leaking.

The water put pressure on the plug, causing it to slide out, pinning Henderson inside the hole as water rose above his head, drowning him.

An aerial photo shows the clarifier, which the court has heard Michael Henderson was working in on the day he died. (New Brunswick Court of King's Bench)

At a three-week trial this past spring, King was found guilty of criminal negligence causing Henderson's death and sentenced to three years in prison.

He's since appealed the decision and is on a release order pending a decision by the New Brunswick Court of Appeal.

As laid out in the agreed facts of the Springhill Construction case, the company failed to recognize the hole Henderson was working in was a "confined space," and therefore failed to take precautions required by law to ensure work is safely conducted inside one.

Henderson was working in the hole in the middle of this clarifier when a plug slid out of a pipe at the bottom of it, pinning him inside as water rose above his head. (New Brunswick Court of King's Bench)

The statement also notes that Henderson was given no training on how to safely use the plug and was not instructed by King that he shouldn't be working in front of it while it was in use.

King also didn't inform Henderson that he was pouring thousands of litres of water into the adjacent manhole, which ultimately caused the plug to slide out, causing his death.

Sentence a 'slap on the wrist', says mother

Diane Henderson was visibly emotional as she sat through Friday's proceedings, particularly when a social worker read out a victim impact statement to the court on her behalf.

The statement described how her son's death has been devastating for her and her older son, who was at the site the day Michael died, and even tried to save him while he was stuck in the hole.

Once court was adjourned, Diane Henderson shared a written statement with reporters, which expressed disappointment with Lantz's sentence.

"The fine of $100,000 for Springhill I'm sure is really nothing for them," she wrote, noting the maximum fine under the Occupational Health and Safety Act is $250,000 in New Brunswick, and $2 million in Ontario under that province's act.

"They are walking away with a slap on the wrist. How does such a minimal fine like this prevent Springhill or other companies from something like this happening again?"

In delivering his sentence, Lantz noted the Crown and defence had jointly recommended the $100,000 "alternative penalty."

In describing how he came to agree with the joint recommendation, Lantz said he considered the size of Springhill Construction, noting it's a "small business" that employs 31 people, and reported net revenue of $500,000 to $600,000 last year, but net losses of about the same in 2020.

He said he also considered past sentences for similar incidents, where companies were fined anywhere between $18,000 and $125,000, with the smaller fines levied against smaller companies, and larger fines against large companies.

Bursary to go toward NBCC students

While workplace safety fines typically go into the provincial government's general revenue, Lantz said the sentence requires Springhill Construction to donate $100,000 to the New Brunswick Community College Foundation Inc.

He said the money will be used to create an endowment fund, which will help cover the tuition for students in the college's carpentry program.

He said qualifying students will need to demonstrate a need for financial help, as well as a commitment to promoting workplace safety.

"As pointed out in the defence brief, there is significant value in linking the punitive measures to improving health and safety outcomes," Lantz said.

"The implementation of this bursary will further promote the education of workplace safety and hopefully eliminate any needless deaths in the workplace in the future."