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Workplace Health, Safety & Compensation Law - Workplace health and safety - Offences and enforcement - Defences - Due diligence - Offences - Failure to ensure health and safety of workers

Thursday, March 30, 2017 @ 8:00 PM  


Application by the Crown for leave to appeal a Summary Conviction Appeal Judge (appeal judge) decision setting aside the respondent’s convictions under the Occupational Health and Safety Act for failing to ensure the safety of its workers. In December 2010, a team of the respondent’s employees were removing an oil drill string from a well. During the process, the drilling pipe suddenly spun out of control while two employees were in the rotary table danger zone. Part of the apparatus struck one of the floorhands, who died of his injuries. The driller, who might have been in the best position to testify as to what occurred, did not testify as he was working in the US. At trial, there was competing evidence about what caused the drill string to spin. The trial judge concluded that the Crown proved the actus reus more broadly than required by the prima facie breach approach, so that the defence needed to satisfy him that they had taken all reasonable steps to avoid the present type of accident. The appeal judge held that the trial judge erred by finding that the Crown proved the offence merely by proving that the accident occurred. The appeal judge found that the accused met all industry standards and regulations. She held the trial judge erred by failing to assess due diligence with reference to industry standards and the absence of any specific safety standard, which would govern what a reasonable drilling company would have done in the circumstances. The Crown argued the appeal judge erred by requiring the Crown, as part of the actus reus of the offence, to negate due diligence or prove negligence and erred in law in her interpretation and application of the due diligence test.

HELD: Application allowed. On existing law in Alberta, it was arguable the Crown needed only to prove the fact of employment, the worker’s engagement in the employer’s work, and his injury or death, to prove failure to ensure the health and safety of workers engaged in the work of the employer. The proper test to determine whether the Crown had proved a breach of s. 2(1) of the Act was of sufficient importance to justify a further appeal, as workplace safety was of significant public importance in the context of the oil and gas industry, and generally, in Alberta. An injustice might flow from the lower court ruling if not reviewed on appeal, since the appeal judge’s decision rested upon a standard of proof that was arguably wrong, but would nonetheless guide the court at the new trial directed by the appeal judge. The test to be applied in the interpretation and application of the due diligence test, was also a question not yet broadly settled by the Court. The Crown’s position on the question had arguable merit, since the decision of the appeal judge arguably used a test of due diligence that imposed an obligation on the Crown to disprove compliance with industry standards and specific government regulation.