City, fire chief and training officer charged in firefighters drowning

[BladesRobinson]

POSTED ON THE SAR DIVER FORUM BOARD at
SAR-Diver : Water Rescue & Recovery and PSD Forum

Point Edward, fire chief charged in firefighter's death
by: TARA JEFFREY

The Observer

POINT EDWARD — The Village of Point Edward, its fire chief, and a training officer have been charged in the death of a firefighter who was trapped under ice during a rescue training exercise on Lake Huron in January.

The Ontario Ministry of Labour laid a total of 11 charges under the Occupational Health and Safety Act, court documents show.

Fire chief Doug MacKenzie, the village, and Terry Harrison, of Georgetown, Ont., are each charged with "failing to take every precaution reasonable in the circumstances for protection of a worker."

Volunteer firefighter Gary Kendall, 51, died following a water training exercise conducted at the shoreline of Lake Huron, where the lake enters the St. Clair River.

"I can confirm that charges were laid against the Village and the other named employee defendant," Point Edward Mayor Dick Kirkland said in a statement, Monday.

"As the matter is before the court, out of respect for the court proceedings, our employees, and all other individuals affected by the tragic events, it would be premature and inappropriate to comment.

"The Village has been, and will continue to be committed to health and safety in the workplace," Kirkland added.

Members of the Point Edward fire department were conducting ice water rescue training in the water on Jan. 30, when a large ice flow came down the river, trapping Kendall beneath it, a ministry spokesperson said at the time.

The 17-year veteran of the service was pulled from the water but died the following day in hospital.

No other firefighters were injured in the incident.

The court document, signed by labour inspector Ron Elliott, states the three defendants are charged with failing to ensure that an adequate number of rescuers were on shore at the time of the incident, along with failing to provide adequate equipment, and failure to appoint a safety officer.

The village and MacKenzie — identified as employer and supervisor respectively — have also been charged with failing to ensure that adequate prerequisite training had been completed and/or confirmed.

MacKenzie faces an additional charge of failing to ensure an adequate safety plan was present, and/or failing to review an adequate training plan.

Harrison, listed as a supervisor, is also charged with failing to ensure an adequate pre-training hazard assessment was conducted, and failing to have an adequate training plan and/or adequate pre-training briefing.

A court date has been set for Sept. 10.

 

[BladesRobinson]

While civil litigation following a training death isn't uncommon, it is seldom that we heard of legal charges. In this case, there were violations of Canadian Labor Law when the well intentioned instructor taught the water rescue program to a firefighter.

While insurance protects an instructor from civil litigation, it does not provide legal services when the instructor (and the chief, and the village) is found in violation of the law.

It will be interesting to see how this plays out in court.

 

[bleeb]

While civil litigation following a training death isn't uncommon, it is seldom that we heard of legal charges. In this case, there were violations of Canadian Labor Law when the well intentioned instructor taught the water rescue program to a firefighter.

Not specific to diving, but in Ontario, Ministry of Labour charges for Health and Safety violations seem fairly commonplace whenever there's been a work-related fatality or severe accident. From the industrial accidents that make the news, I don't think anyone around here would have been particularly surprised to hear that charges were laid.

 

[maxmaxum]

From a firefighter/ems standpoint our jobs have certain inherent risks, and the fact that this happened in training doesnt change that. I know for myself that if an accident such as this had happened to me I would not want charges filed on anyone.

 

[BladesRobinson]

I understand MAXMAXUM's stance and concur that in NEARLY ALL circumstances I too wouldn't want criminal or civil litigation brought against my chief, agency or a fellow instructor. In this case the Canadian government has evidence that supports charges.

• failing to ensure that an adequate number of rescuers were on shore at the time of the incident.
• failing to provide adequate equipment.
• failing to ensure an adequate safety plan was present, and/or failing to review an adequate training plan.
• failing to ensure an adequate pre-training hazard assessment was conducted, and failing to have an adequate training plan and/or adequate pre-training briefing.
• failing to ensure that adequate prerequisite training had been completed and/or confirmed.
• failure to appoint a safety officer.

These charges point to a difference between "recreational" training and "public safety" training.

In the public safety sector, labor LAWS must be considered and a violation of these LAWS will result in CRIMINAL proceedings.

When a student signs a liability release form, he is waiving his rights to civil litigation (only). A student cannot waive his rights to the protections mandated by LAW. When an instructor pays for an insurance policy through a training agency, that insurance covers the cost of a legal team to prevent civil claims against the instructor/insurance company. Instructor insurance does not provide protection for criminal acts or violations of labor laws.

I do not know the finite details of this incident and I suspect some of the charges are a stretch. I am curious why "failure to appoint a safety officer" is listed and why the instructor wouldn't also fill the role of "safety officer." I am certain though that the instructor wishes this tragedy never happened. Because of these criminal charges for violating labor laws he will spend a lot of his own money for a good attorney, spend many days in court losing out on potential income, and may even spend time in jail.

It puts "risk/benefit" in a whole new perspective.

 

[Jim Lapenta]

I am first of all not a PS diver or PSD Instructor. But it is incidents like this that as a RECREATIONAL instructor scare the crap out of me. There are some local fire depts that got grants through Homeland Security to set up dive teams. The problem is that these grants seem to be more motivated by politics than common sense. The shop I work with turned down a FD because they wanted to get OW, AOW, and Rescue as soon as possible to start doing recoveries/rescues. They did not want to listen to the owner or a local instructor who is a PSD trainer and Forensic diving instructor tell them about what really is involved. They found a shop to take their money, put them in new top of the line recreational gear, and make "Rescue Divers" out of them. Some have not even gotten as far as rescue.

My question Blades is, if you know the answer, why are there not specific training requirements and approved agencies attached to them? I don't know what this would have meant to the FF in the article but around here I cringe eveytime I see these guys in recreational jacket bc's, dry snorkels, split fins, and air twos that are not even secured with big gauge consoles, getting in the water thinking that they will be able to go do PSD duties the next week.

Right now there are at least a dozen local or nearby VFD's with this situation, that I'm aware of.

 

[mstueven]

I am first of all not a PS diver or PSD Instructor. But it is incidents like this that as a RECREATIONAL instructor scare the crap out of me. There are some local fire depts that got grants through Homeland Security to set up dive teams. The problem is that these grants seem to be more motivated by politics than common sense. The shop I work with turned down a FD because they wanted to get OW, AOW, and Rescue as soon as possible to start doing recoveries/rescues. They did not want to listen to the owner or a local instructor who is a PSD trainer and Forensic diving instructor tell them about what really is involved. They found a shop to take their money, put them in new top of the line recreational gear, and make "Rescue Divers" out of them. Some have not even gotten as far as rescue.

My question Blades is, if you know the answer, why are there not specific training requirements and approved agencies attached to them? I don't know what this would have meant to the FF in the article but around here I cringe eveytime I see these guys in recreational jacket bc's, dry snorkels, split fins, and air twos that are not even secured with big gauge consoles, getting in the water thinking that they will be able to go do PSD duties the next week.

Right now there are at least a dozen local or nearby VFD's with this situation, that I'm aware of.

I think what you're describing is a nation-wide issue to some degree. Many dive teams are so budget constrained that they're lucky to push through to rescue diver. And I also have seen grant-funded teams start up with the bare minimum and basically ignore the advice of the indoctrinated. Heck, even some of the larger agencies around this area seem to focus on more internal training and many of our professional firefighters are merely open water certified and then get OJT as part of the 'heavy rescue' unit.

I've dove with some of these guys in training, and it's painfully obvious that some of them just aren't comfortable in the water. So that's equally frustrating.

Our director is certified to teach PSD through PADI and runs a tight regimen, but even we are guilty of not having everyone on the dive team certified to that level. Our situation is somewhat unique as we have a blended public safety department of both paid and volunteer personnel, and our dive team is comprised of individuals from both sides of that fence.

It is scary to look out there and see recreational equipped and trained divers pulling off one of the most hazardous duties in public safety. Yet I also understand the determination, desire, nobility and courage involved - having been part of starting up our unit in exactly that manner. It has taken several years for us to evolve both our equipment and training to this point, and we have a long way to go!

To take a stab at your ultimate question, at least here in the USA, the NFPA is the primary regulatory agency for training requirements involving technical rescue, such as swiftwater, ice, or dive rescue disciplines. The training requirements are basically then interpreted by the local authority and evaluated in the context of specific environmental or hazardous conditions in that jurisdiction, and specific training is identified to meet those needs. Having an agency like IADRS or PADI or DRI provide a 'certified' training program helps some, because a lot of the thought process has already gone into meeting those requirements. Plus when you're against the wall as a trainer or administrator, you can fall back on the published standards as a defense.

But I'm unaware of NFPA having enforcement authority. When you screw up, those are the standards by which you will be judged in any civil litigation that arises. But they don't fine you or cite you. I'm with Blades - it will be interesting to see how this plays out in court and whether or not it has any trickle down affect on us here.

 

[maxmaxum]

I know that what is said on this forum by me doesnt change the way things are, but I all to often I see how the bureaucracy of the NFPA and other affilliated agencys take a stance that all things are black and white. In the real world, ie: in the field, situations change that sometime are not foreseable. I would love to work off of a pre-planned format and events transpire the way they are supposed to but that just isnt the way things are. I do not know the entire situation leading up to this unfortunate accident such as the frequency of ice flows in the area but I assure you no firefighter in there right mind would knowingly put another firefighter in harms way. Yes there are guidelines put in place to prevent mishaps from occuring but these do not always work "in the real world". SOP's, SOG's are guidelines thats all. When your accually excecuting your job acctivities you must motify, change and adapt to the situation your delt with. My prayers go out to all involved, these men sound as though they were trained and were compitent in there craft, by using "saftey officer" and such as a form of illegations to indite this officer I feel is just simply needing to point the finger at someone.