R. v. 1023803 Alberta Ltd. et al.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Gates, J.
• Citation: (2014), 598 A.R. 78 (QB),2014 ABQB 645
• Date: 06 June 2014

R. v. 1023803 Alta. Ltd. (2014), 598 A.R. 78 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. NO.043

Her Majesty The Queen as represented by the City of Calgary (respondent) v. 1023803 Alberta Ltd., Brookfield Properties Management Corporation and Brookfield Properties Ltd. (appellants)

(111432001S2; 2014 ABQB 645)

Indexed As: R. v. 1023803 Alberta Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Gates, J.

October 20, 2014.

Summary:

The three corporate accused owned and managed an office building. A construction company was hired to install a roof-top emergency generator. While the generator was being tested, fuel began spilling from the vent pipe onto the roof. The building had to be evacuated and a long clean-up process ensued. The accused were charged under the Safety Codes Act with failing to immediately report the spill to the fire department (count 1), failing to obtain the required permits or approvals prior to installation of the generator (count 2), and failing to ensure that their employees had proper training in operations involving flammable and combustible liquids (count 3). The accused argued that they had exercised due diligence.

The Alberta Provincial Court, in a decision reported at (2013), 578 A.R. 168, issued directed verdicts of not guilty on count 3 in relation to all three accused, and on count 2 in relation to two of the accused. The third accused was found not guilty on count 2 because it had exercised due diligence. All three accused were found guilty on count 1. They were each fined $10,000 plus a 15% victim surcharge. The accused appealed the conviction.

The Alberta Court of Queen's Bench dismissed the appeal.

Trade Regulation - Topic 7870

Industrial safety - Offences - Mens rea - Whether required - The corporate accused owned and managed an office building - A construction company was hired to install a roof-top emergency generator - While the generator was being tested, fuel began spilling from the vent pipe onto the roof - The building's operations manager was advised of the spill at 4:30 p.m., but he did not report the spill to the fire department until 6:34 p.m. - The accused were convicted of failing to immediately report a spill in excess of 50 litres in violation of the Safety Codes Act - They appealed, arguing that the trial judge erred in his determination of when the duty to notify had been triggered, by failing to consider when the accused became aware that the spill exceeded 50 litres - The Alberta Court of Queen's Bench dismissed the appeal - It was not disputed that a spill in excess of 50 litres took place by 4:30 p.m. - Since this was a strict liability offence, the Crown's burden was limited to proving a spill in excess of 50 litres and a failure to immediately notify, not knowledge of a spill in excess of 50 litres and a failure to immediately notify - The trial judge did not err in failing to import a knowledge element into the actus reus of the offence - In any event, the accused should have tried to determine the amount of the spill much earlier, rather than waiting until 6:00 p.m.

Trade Regulation - Topic 9006

Offences - General - Offences of strict liability - [See Trade Regulation - Topic 7870 ].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 24].

R. v. Zimmerman (C.R.), [2012] A.R. Uned. 331; 2012 ABQB 293, refd to. [para. 24].

R. v. Shell Canada Ltd. et al. (2000), 267 A.R. 308; 2000 ABQB 459, dist. [para. 28].

Gavin v. The Queen (1956), 115 C.C.C. 315 (P.E.I.C.A.), refd to. [para. 28].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 30].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 30].

La Souveraine, Compagnie d'assurance générale v. Autorité de marché financiers, [2013] 3 S.C.R. 756; 451 N.R. 113; 2013 SCC 63, refd to. [para. 30].

Aftergood v. Alberta (Minister of Municipal Affairs) et al. (2006), 384 A.R. 189; 367 W.A.C. 189; 2006 ABCA 154, refd to. [para. 33].

R. v. Pierce Fisheries Ltd., [1971] S.C.R. 5; 3 N.S.R. 1965-69 1, refd to. [para. 57].

Latulippe v. Desruisseaux (1986), 50 C.R.(3d) 277 (Que. C.A.), refd to. [para. 70].

R. v. Pee-Kay Smallwares Ltd., [1948] 1 D.L.R. 235 (Ont. C.A.), refd to. [para. 72].

R. v. Wholesale Travel Group Inc. and Chedore, [1991] 3 S.C.R. 154; 130 N.R. 1; 49 O.A.C. 161, refd to. [para. 73].

R. v. Timminco Ltd. (2001), 144 O.A.C. 231; 54 O.R.(3d) 21 (C.A.), refd to. [para. 75].

Counsel:

Charlene McLaughlin, for the respondent;

Dufferin Harper and Heather Richardson, for the appellants.

This appeal was heard on June 6, 2014, before Gates, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for decision on October 20, 2014.