Contractor testifies no safety protocols were in place on day of worker's death

An engineer testified Wednesday he wasn't aware of any safety protocols being in place for a procedure that was to be carried out on a construction site on the afternoon of a workplace death in Fredericton nearly five years ago.

Cole DeMerchant testified in Court of King's Bench he was working at the same construction site where Michael Henderson, 18, drowned on Aug. 16, 2018.

The Crown called on him Wednesday to testify on the second day of what could be a five-week judge-alone trial for Jason King, who's charged with criminal negligence related to Henderson's death.

DeMerchant testified that he was working as an engineer-in-training for CBCL Ltd., an engineering firm, at the time of Henderson's death.

He said CBCL had been contracted by the City of Fredericton to design and monitor work to upgrade its wastewater treatment facility on Barker Street.

DeMerchant said that involved constructing a "clarifier," which the court earlier heard is a round, pool-like structure used for distilling sludge and effluent during the later stages of sewage treatment.

He said while CBCL was awarded the contract to design it, Springhill Construction had been hired to construct it, with DeMerchant's job being to oversee that it was being built in accordance with the designs.

DeMerchant said that in the months leading up to Henderson's death, he spoke several times with King, the project's foreman with Springhill, about conducting a "leak test" to make sure the clarifier was water-tight.

King discussed doing so by filling an adjacent manhole that was connected by pipe to the clarifier with water, DeMerchant said, and then using a measuring stick to see if the water's depth changed over time.

He said he understood the test would be carried out on the afternoon of Aug. 16, 2018, and when asked by Crown prosecutor Patrick McGuinty, said he wasn't aware of there being any safety protocols in place at the time.

DeMerchant also testified he saw Henderson inside the clarifier cleaning up construction debris that morning.

He said he went to lunch at noon, and when he returned 45 minutes later, another Springhill employee told him that Henderson was dead.

"He said 'It's been too long, he's gone'," DeMerchant said.

"I basically looked into the clarifier to see what was going on. I didn't know what to do."

It's still unclear what exactly happened to Henderson while he was in the clarifier, however an agreed statement of admissions filed with the court says Henderson's cause of death was drowning.

The agreed statement of admissions also includes a timeline of events based on closed-circuit television recordings obtained from the City of Fredericton.

Notably, King placed a hose into a manhole a metre or two away from the clarifier and turned on the water at a nearby fire hydrant. About half an hour later Henderson climbed into the empty concrete pool after his lunch break. 

About 30 minutes after that, Clayton McKeil, a co-worker, climbed from inside the clarifier to the top of scaffolding at its edge and alerted King that something was wrong. 

King ran to the side of the clarifier and then to the hydrant and turned off the water.

McKeil then climbed out of the clarifier, appearing "visibly distraught." 

Earlier Wednesday, the trial saw the cross-examination of Dan Harvey, the city's wastewater manager.

Defence lawyer Sabrina Winters questioned Harvey about the city's role in overseeing the construction project and brought up a series of documents showing the minutes from meetings he had with other workers involved in the project.

Harvey testified that he regularly checked in on the work as it was being done and would bring up any concerns he had about safety at those meetings.

He said at one time he saw workers walking on form-work without wearing restraints.

Multiple times Crown prosecutor Patrick McGuinty interrupted to question the relevance of the meeting minutes being submitted as evidence.

"What this is telling us is that the City of Fredericton had a role to play with respect to safety," said Winters, responding to questions from Justice Thomas Christie.

The trial will resume on Thursday morning with defence counsel expected to cross examine DeMerchant.