A WorkSafeNB investigation found enough evidence to recommend a charge against American Iron and Metal after a worker was swept to his death at the west side Saint John plant, but the Crown will not be pursuing it.

The workplace safety organization recommended the Crown lay a charge under the Occupational Health and Safety Act, alleging that AIM failed to ensure the health and safety of truck drivers, and failed to have a safe procedure for drivers to enter trailers after they were unloaded.

WorkSafeNB spokesperson Laragh Dooley said after reviewing the recommendation, the Crown determined that "there was insufficient evidence to give a reasonable probability of conviction."

The unnamed worker was the first of two workers to die at the AIM plant within seven months. The investigation into the death of the second worker, Darrel Richards, is still going on.

The WorkSafeNB investigation found that the worker died because he entered the trailer while it was still being unloaded and was swept away by a crane wielding a large ball of metal fencing used to clean out small debris.

AIM has an internal policy that no trailers should be loaded or unloaded while truck drivers are outside their cab. But the investigator found video evidence between Nov. 8 and Nov. 19 that shows drivers outside of the cabs during unloading, one even helping the crane operator attach a magnet.

The report said AIM did not have a written procedure that was specific to how trucks are processed and unloaded. The investigator found workers did things differently depending on who's on shift.

"Some employees indicated that the drivers are to always remain in their vehicle, while some said if the driver prefers to wait outside their vehicle, they are to remain in front and not wander around during operation," the report said.

AIM also has general written guidance for outside contractors that prohibits leaving the cab or entering the trailer during unloading. However, AIM was unable to provide a record that the deceased man's company received or signed the document.

"There is no evidence that indicates Deschenes Drilling ever received this contractor's orientation," the report said.

Dooley said since the death of the worker, AIM has corrected the lack of written safety processes for truck drivers.

"This new safety procedure for truck drivers was reviewed by WorkSafeNB and found to comply with legislative requirements," she said.

American Iron and Metal CEO Herbert Black declined to comment Tuesday.

When asked why there was insufficient evidence for a reasonable probability of conviction, Department of Justice spokesperson Judy Désalliers said "The facts and circumstances of this particular case, as investigated and as presented to the Crown prosecutor, did not support the laying of a charge."

In the emailed statement, Désalliers said the Crown will only follow up with WorkSafeNB and suggest additional work if it furthers the charge.

"However, if the facts do not support that action, then the file is considered closed," she said.

On Nov. 24, 2021, the unnamed worker was delivering scrap metal to the recycling facility for Deschenes Drilling. 

An AIM employee operating a crane began offloading the trailer. The operator first used crane grapples to move large scrap metal and then a "wire brush," a ball of galvanized steel fencing held in the grapple, to sweep the trailer.

A video viewed by the investigator shows the worker entering and exiting the cab of the truck, and moving around the driver and passenger side. It also shows him gesturing toward the crane.

At around 9 a.m., the worker climbed into the trailer. The report did not say why. The crane operator did not see the worker enter the trailer, the report says, because he was turned away. 

The operator dropped the wire brush on the ground and appeared to be finished with sweeping, the report says.

For approximately two minutes, while the worker was in the trailer, the operator used the grapples to move a few pieces around on the ground.

Then the crane operator picked up the ball of fencing to rake out the trailer again, and swept the worker out of the trailer into a pile of scrap.

The report said there is no radio communication between the truck driver and the crane operator, and the operator cannot see the floor of the trailer from the crane cab.

The operator continued sweeping the trailer for several minutes, stopping only after noticing the worker's legs under a pile of scrap, the report said.

The worker died in hospital, the report says.

"There were no witnesses to the incident other than the operator who did not see [redacted] enter the trailer," the report says.

According to the report, AIM has internal procedures to inspect certain loads because of concerns about some scrap containing explosive materials. Procedure says any unapproved loads should be unloaded to the ground and spread out for easier searching, and this was the case for Deschenes Drilling loads. 

The investigator found that this policy, which does prohibit loading or unloading while drivers are outside the cab, is not circulated to drivers or outside companies, only internally.

The external contractor orientation document also included guidance about leaving the cab during unloading, but AIM wasn't able to prove this document was provided to Deschenes Drilling.

AIM also has another document titled Site Safety that's given to all drivers entering the facility on the west side. 

"This document is very general in nature and does not provide any specific instructions related to how the unloading process will unfold," the report says.

The worker who died did receive the document and signed it on Nov. 19, "but it was not returned to AIM."

One worker interviewed also said there are times when the drivers will inspect their own trailers if the yard is short on inspectors. But in these cases, the grapple would be lowered to the ground. 

However, videos from Nov. 8 and Nov. 10 shows a driver climbing behind his cab onto the trailer while the grapples are in the air. 

"In both these instances, an inspector is present, observing the behaviour," the report says. 

"Video evidence does suggest that [the deceased worker] was familiar with the procedure for moving his truck away from the unloading area to clean sweep his trailer."

Hadeel Ibrahim is a reporter with CBC New Brunswick based in Saint John. She reports in English and Arabic. Email: hadeel.ibrahim@cbc.ca.

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