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WORKPLACE HEALTH AND SAFETY - Offences and enforcement - Due diligence

Friday, June 19, 2020 @ 5:45 AM  

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Appeal by Kal Tire from its conviction under the Occupational Health and Safety Act for failing to ensure that a truck was rendered sufficiently inoperative while being serviced by one of its employees. A customer brought his tractor and trailer to the appellant’s facility due to a flat tire. The appellant’s employee, Bachynsky, put an “Out of Service” sign on the door of the truck and crawled under the trailer to commence the repair. Contrary to established appellant procedure, its employee Town, who believed the truck was not properly positioned, disregarded the “Out of Service” sign and told the customer to move the truck forward. Bachynsky was injured as a result. The appellant was acquitted of two other charges on the basis it had established due diligence.

HELD: Appeal allowed; new trial ordered. While the appellant was only alleged to have done one thing wrong, the generic and overlapping nature of the enactments allowed the safety officer to lay five different charges. The conviction was not inconsistent with the charges from which the appellant was acquitted as the actus reus of the charges was different and the test of due diligence varied depending on the nature of the charge. To raise a successful due diligence defence, the appellant did not have to negate the actus reus. The appellant merely had to prove it had taken all steps that were reasonable. The trial judge misapplied the defence of due diligence. Dissenting reasons were provided.

R. v. Kal Tire, [2020] A.J. No. 565, Alberta Court of Appeal, P.T. Costigan, F.F. Slatter and S.J. Greckol JJ.A., May 13, 2020. Digest No. TLD-June152020010