Foreman cleared of criminal negligence in Dartmouth construction site death

A Nova Scotia judge has found a foreman who was charged with criminal negligence related to the death of a 22-year-old labourer at a Dartmouth, N.S., construction site not guilty.

Jeff Gooch was a supervisor and foreman for Insulated Panel Structures. He was working at the Dartmouth Crossing construction site in March 2018 when Brandon Alcorn fell from the Kent Building Supplies store that was under construction. Alcorn died from his injuries and Gooch was charged in December 2019.

In his ruling released on Thursday, Jan. 4, Justice D. Timothy Gabriel said Alcorn was likely intoxicated when he fell more than five metres to the ground. Alcorn was wearing a harness but it was not anchored to the roof, Crown prosecutor Alex Keaveny said.

At trial, toxicologist Jennifer Swatek testified both delta-carboxy THC and delta-9 THC — the latter she described as a psychoactive material deposited in the body after the ingestion of cannabis — were found in the samples of Alcorn's blood taken before his death.

"At page 2 of the report, she describes it as the active ingredient found in marijuana. She describes the drug as a 'DEA schedule one hallucinogen. Pharmacologically, it has depressant and reality distorting effects," Gabriel noted in his ruling. 

Dr. Neal Sutton, who Gabriel described as a medical consultant to a number of large employers, told court that in his view, there is no acceptable level of delta-9 THC in a worker's blood when performing tasks like working from heights.

Delta-9 THC found in blood

Gabriel noted Sutton said the drug has impairing effects that can "negatively impact the user's balance, field of vision, and awareness of their surroundings."

"I accept Dr. Sutton's conclusion that it is more likely than not that Mr. Alcorn was intoxicated when he arrived for work on the morning of March 13, 2018," Gabriel said in his ruling.

"Even if I had concluded that failing to ensure that each member of the IPS crew was tied off while performing their job tasks on that date was 'an act or omission that was the accused's legal duty to do,' I would have been left in significant doubt that such was the cause of Mr. Alcorn's unfortunate and tragic death."

Gabriel goes on to say that the fact Alcorn showed up to work intoxicated  "appears to have been an intervening event." 

"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 wrote.

"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)."

What happened leading up to the fall

Alcorn fell off the roof 10 minutes after arriving at work. He had been measuring and cutting lengths of blueskin — a weatherproofing membrane — for the structure for his two co-workers, including Gooch. Gabriel said Alcorn was rolling out another length of blueskin while walking backward and "ultimately walked backward off of the far right edge of the canopy."

Dana Munroe, who was also part of the crew, testified that Alcorn had been doing exactly the same job the day before and never noticed him walking back any further than was necessary.

Scott Andrews, the site's superintendent, testified he had not observed any safety infractions committed by the IPS crew. Andrews works for Maxim Construction and part of his job entailed ensuring the company's safety requirements were being followed.

Warning lines

"Moreover, he did not identify any unsafe work procedures or job hazard analyses submitted by Mr. Gooch on behalf of IPS, to that point, that were inconsistent with safe practices in the industry," Gabriel noted.

The issue of fall protection came up in Gabriel's ruling. Barry Oxner, who runs Total Fall Protection in Dartmouth and consults on worksite safety, offered an opinion on the evidence in this case. He said the implementation of fall protection measures and the use of fall-protection equipment is a legislative requirement when working at a site over three metres in height. Alcorn had been on a canopy about five metres above the ground.

In the ruling, Gabriel noted Oxner suggested bump lines or warning lines could be helpful. They're intended to prevent workers from getting too close to the edge, but Oxner said in court that bump warning lines are not permitted in Nova Scotia.

Instead, Nova Scotia's Occupational Health and Safety Act says guardrails must be installed on each working level of a project as work progresses, if there is a risk of falling at a doorway or the opening of a building floor, roof, walls or shaft. 

While Alcorn was provided with a harness, a shock-absorbing lanyard and an anchor for fall protection, Oxner questioned whether some of the equipment had been used in a previous fall because it was damaged. Under cross examination, Oxner said the harness could have been damaged when Alcorn fell.  

But Gabriel "did not place a great deal of weight on [Oxner's] evidence," calling him "argumentative and evasive," and noted "he really had no idea whether or not the equipment was satisfactory at the time Mr. Alcorn put it on."

Keaveny said the Crown is reviewing the judge's decision carefully and hasn't yet decided if it will appeal. 

Numerous OHS charges 

Gooch and his employer, Insulated Panel Structures, are still facing numerous Occupational Health and Safety Act charges, which were on hold pending the conclusion of the criminal charge. 

IPS is charged with failing to ensure an employee had valid fall protection training, failing to establish a written fall-protection safe-work procedure and four counts of failing to ensure appropriate fall protection was used where there was a risk of falling from a work area.

Gooch is charged with four counts of failing to take reasonable precaution to protect health and safety in the workplace, failing to ensure he, as foreman, had up-to-date fall protection training and knowingly furnishing an officer with false information. 

The case is scheduled in Dartmouth provincial court on Feb. 5.