R. v. 1023808 Alberta Inc. et al., (2013) 578 A.R. 168 (PC)

• Judge: Van Harten, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: December 05, 2013
• Citations: (2013), 578 A.R. 168 (PC);2013 ABPC 329

R. v. 1023808 Alta. Inc. (2013), 578 A.R. 168 (PC)

MLB headnote and full text

Temp. Cite: [2013] A.R. TBEd. DE.081

Her Majesty the Queen v. 1023808 Alberta Inc. and Brookfield Properties Management Corporation and Brookfield Properties Ltd.

(111432001P102001-003; 111432001P103001-003; 111432001P104001-003; 2013 ABPC 329)

Indexed As: R. v. 1023808 Alberta Inc. et al.

Alberta Provincial Court

Van Harten, P.C.J.

December 5, 2013.

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 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.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - A 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 was charged under the Safety Codes Act with failing to obtain the required permits or approvals prior to installation of the generator - The Alberta Provincial Court found the accused not guilty - Although the Crown had proven the actus reus of the offence, the accused had exercised due diligence - Through its construction manager, the accused had stayed in communication with those working on the installation and monitored the progress of the work, including being email copied with a Safety Codes officer's suggested changes to the installation - See paragraphs 64 to 66.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - 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 (Sylvester), who was at home, was called at 4:30 p.m. and advised of the spill - Sylvester arrived at the building at 5:15 p.m. - He reviewed the building's chemical release and spills policies, and decided to call a hazardous materials company at 6:00 p.m. - The hazardous materials company returned his call at 6:30 p.m., and on its advice, Sylvester called the fire department - Over two hours had passed since discovery of the spill - The accused were charged under the Safety Codes Act with failing to immediately report the spill - The accused argued that they had exercised due diligence because they had appropriate systems in place to prevent commission of the offence and those systems were operationally followed - The Alberta Provincial Court found the accused guilty - While the accused had a proper system in place, they failed to take reasonable steps to ensure the effective operation of the system, that being Sylvester's lack of familiarity with the Fire Code provisions - See paragraphs 49 to 63.

Cases Noticed:

R. v. M.B.P., [1994] 1 S.C.R. 555; 165 N.R. 321; 70 O.A.C. 161, refd to. [para. 16].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215, refd to. [para. 19].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 20].

R. v. Beusekom (J.) (2003), 345 A.R. 214; 2003 ABPC 158, refd to. [para. 22].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 22].

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. 23].

R. v. MacMillan Bloedel Ltd., [1993] O.J. No. 4368, affd. [1995] O.J. No. 1790, refd to. [para. 56].

R. v. Lambert (1960), 33 C.R. 192, refd to. [para. 57].

Counsel:

A. Paul Frank, for the Crown;

D. Harper and H. Richardson, for the accused.

This matter was heard before Van Harten, P.C.J., of the Alberta Provincial Court, who delivered the following reasons for judgment at Calgary, Alberta, on December 5, 2013.