Water plug becomes focus in trial over death at Fredericton sewage plant

A criminal negligence trial is beginning to shed light on the possible role an industrial-sized plug played in the death of a worker at Fredericton's wastewater treatment plant nearly five years ago.

Jason King's judge-alone trial continued Thursday morning at the Burton courthouse with the cross examination of Cole DeMerchant, who was working as an engineer-in-training for CBCL Ltd. at the time of Michael Henderson's death on Aug. 16, 2018.

DeMerchant testified he was at the job site that day, and he "assumed that something had happened to the plug" when he found out Henderson died.

Court earlier heard that CBCL was hired to design infrastructure as part of a project to upgrade the City of Fredericton's wastewater treatment plant on Barker Street, while Springhill Construction Ltd. was contracted to do the construction work.

Court also heard that King was the foreman for the job with Springhill Construction and that Henderson worked under him for the same company.

DeMerchant was also on the site every day to monitor the project and make sure work met design specifications.

On Thursday defence lawyer Patrick Hurley questioned DeMerchant about discussions he had with King about using a plug to test for any leaks in the infrastructure that was being built.

A key part of that infrastructure included 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.

DeMerchant testified that there were discussions about conducting a "leak test" to determine whether the clarifier, and pipes connected to it, were water-tight.

He also testified he was aware that King had mentioned at previous site-meetings the possibility of using a plug to help carry out the leak test.

DeMerchant said he was aware King intended to carry out a leak test on the day Henderson died, however, he said he did not recall any specific conversations about a plug being involved.

He testified he went to lunch at noon and returned about 45 minutes later and was met by Clayton McKeil, another Springhill Construction employee, who told him Henderson had died.

DeMerchant said he walked to the edge of the clarifier and saw two workers standing around a five-foot hole in the centre of the clarifier.

DeMerchant said he later learned they were trying to help Henderson.

Pushed on the question of whether he knew King planned to use the plug that day, DeMerchant said he didn't.

"I didn't know that it was installed before I went for lunch," he said.

Certain uses unsafe, says city employee

The trial also heard testimony from Carter Dunphy, a foreman responsible for the City of Fredericton's wastewater division.

He answered a series of questions from Crown prosecutor Christopher Lavigne on the city's use of plugs in its operations and how they work.

Dunphy said plugs are typically used in instances when they want to redirect water flow in pipes.

Asked whether he'd ever allow an employee to get in front of a plug while it was in use, Dunphy said he wouldn't.

"It's unsafe," he said.

Lavigne directed Dunphy's attention to a plug lying on the floor in the courtroom as part of the exhibits.

Dunphy initially said he believed he'd worked on that plug, but then said he was unsure as it looked different from what he remembered.

Lavigne also presented Dunphy with a toolbox containing a gauge, valve and air hose for a plug, which he later revealed were seized at the site by WorkSafeNB.

He asked Dunphy to assemble the pieces himself.

Dunphy did so, but said the pieces wouldn't allow for the user to read the air pressure in the plug if the air compressor were to be turned off.

Defence draws on contradiction

On cross-examination, defence lawyer Sabrina Winters asked Dunphy about his role in lending one of the city's plugs to Springhill Construction for the job they were working on in 2018.

She asked him if the city had any policy when it came to lending equipment out, to which he said he was unaware.

She also questioned Dunphy's earlier testimony that he didn't feel it was safe for employees to stand in front of plugs while they were in use.

Winters brought up photos submitted as evidence, which she said were taken by Dan Harvey, the city's wastewater manager in 2017.

The photos appear to be taken from inside a square space, a few feet below ground level, in a building.

One of the photos taken from inside that space show a plug — similar to the exhibit — that is inflated inside a round opening on one of the walls.

The photo appears to have been taken while standing directly in front of the plug.

"Did this setup raise any concerns for you?" Winters asked.

"No, I didn't pay attention to it at the time," Dunphy replied.

The Crown has to prove beyond a reasonable doubt that King either did something, or failed to do something that he had a duty to do, which was a significant contributing factor to Henderson's death.

At the outset of the trial Tuesday, Crown prosecutor Patrick McGuinty said the question the judge must decide is "Do King's actions represent a marked and substantial departure from what a reasonable person would have done in the circumstances?"

The trial is expected to continue Friday morning, with McGuinty saying the court will hear the bulk of the evidence from what happened the day Henderson died.