Halifax judge fines furniture company The Brick $143K after fatal workplace fall

A Nova Scotia provincial court judge has handed furniture company The Brick $143,750 in fines related to occupational health and safety violations in the case of a 47-year-old employee and father of four who died following a fall at a Halifax-area store and warehouse.

In her decision Wednesday, Judge Elizabeth Buckle noted Martin David died in hospital two days after he was found in a store washroom, but his family had no idea where he was for 30 hours because nobody from the company told them he'd been taken away by ambulance.

"If The Brick had notified them when Mr. David was taken to hospital, it is possible that they could have been there to comfort him," Buckle said.

David, a delivery driver for the company, was found by another employee on the floor of a darkened store washroom, vomiting and only semi-coherent, on June 9, 2020. The court heard the co-worker thought David had become ill, and didn't realize he was injured. 

The lights were not on because they were on a timer and there was no switch either inside or outside the bathroom. Buckle said the timing of the lights had been rescheduled two months earlier due to store-hour changes in the early days of COVID-19. It meant warehouse employees who worked earlier hours were going to the washroom in the dark, or using flashlights on their phones.

David's 73-year-old father, Marty David, said the judge's decision was "heartening." He said he is glad the legal process is over, and his faith in God has helped him and his family weather the nearly four years since his son's death.

He noted the vice-president of The Brick apologized to the family during a hearing earlier this year, but said they feel "cheated" by the death and by the fact the company never reached out to tell them Martin David had been taken to hospital. David left behind four children — two of them still young.

"Who's going to be there to nurture them, to help them, to make their lives satisfied and make sure they're doing fine?" Marty David said outside the courtroom. "Financially, these kids have been left without a father, left without money."

Evidence at trial showed that a manager only texted David nearly a day and a half after he was taken to hospital. In her decision, Buckle said managers had a "moral obligation" to reach out sooner to make sure he was OK, and to ensure his family knew he was in hospital.

During a court hearing earlier this year, Brick vice-president Greg Nakonechny apologized to the David family. The company has instituted a series of changes around lighting and policies, and has done more training for employees on reporting.

The Brick pleaded not guilty to the charges. In September, following a trial, Buckle found the company guilty of three occupational health and safety charges, including two for failing to implement its policies around injury investigation and lighting, and one of failing to ensure the toilet facility was properly illuminated.

An autopsy later determined David had fractured the back of his skull. The company never reported the incident to the Labour Department, which only learned what had happened days later when David's father called to see if there was an investigation.

The judge found the company guilty of health and safety violations, but also said the Crown had not proven beyond a reasonable doubt that the lack of lighting led to David's fall, a ruling that limited the maximum fine the company could face.

The Crown had argued it could be reasonably inferred that the darkness led to David's fall, but Buckle said he could also have fainted in the bathroom following what appeared to be a minor fall five minutes earlier in a loading dock.

Outside the courtroom, Crown prosecutor Alex Keaveny said part of the challenge in proving the link between the darkness and the fall is that The Brick didn't report the accident, which meant investigators weren't able to inspect the washroom before it was cleaned.

For instance, photos of the scene soon after would have shown whether there was water on the floor, which David wouldn't have seen in the dark and could have slipped on.

"I'm not suggesting that they intentionally destroyed evidence, but their negligence led to the destruction of evidence," Keaveny said. "The result, in terms of knowing what happened, is the same." 

While The Brick had adequate lighting and investigation policies, Buckle said, none of the employees who testified at trial properly understood them.

In addition to the fines, which must be paid in 60 days, Buckle also ordered The Brick to do four safety presentations.