R. v. Lonkar Well Testing Ltd., 2009 ABQB 345

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 04, 2009
• Citations: 2009 ABQB 345;(2009), 473 A.R. 1 (QB)

R. v. Lonkar Well Testing Ltd. (2009), 473 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JN.045

Her Majesty the Queen (respondent/Crown) v. Lonkar Well Testing Limited (appellant/defendant)

(061562534S1; 2009 ABQB 345)

Indexed As: R. v. Lonkar Well Testing Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

June 4, 2009.

Summary:

The accused employer was convicted of failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the employer's work contrary to s. 2(1)(a)(i) of the Occupational Health and Safety Act. The accused appealed.

The Alberta Court of Queen's Bench allowed the appeal and quashed the conviction.

Trade Regulation - Topic 7872

Industrial safety - Offences - Burden of proof - [See second Trade Regulation - Topic 7883 ].

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - Companies and their employees were engaged in a sweet well operation - The accused employer provided a horizontal pressure vessel, housed in a trailer, to measure the service flow rate of the well - The vessel included a separator and a Meter Run - When the Meter Run malfunctioned, the accused contacted the manufacturer and made arrangements to have it replaced - Jerdan, a supervisor with the accused, decided to prepare for replacement of the Meter Run - Prior to leaving for Grande Prairie to obtain parts, he instructed Audit to remove 12 to 24 flange bolts from the Meter Run in preparation of ProPipe's arrival - Bebee assisted Audit - Jerdan told Audit not to carry on any additional work until Jerdan returned from Grande Prairie - Audit and Bebee completed the work requested and Bebee left the trailer - When Jerdan returned, he found Audit lying on the floor in the trailer - The Meter Run had been removed - It was determined that Audit's death was suffocation due to the low level of oxygen as a result of the stratification of hydrocarbons, a product of the sweet gas - The accused was convicted of failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the employer's work contrary to s. 2(1)(a)(i) of the Occupational Health and Safety Act - The accused appealed, asserting that the trial judge erred in concluding that the accused had not established its reasonable care defence on a balance of probabilities - Despite the evidence adduced by the accused, the trial judge held that the accused had not done enough to meet its statutory obligation, as it was not objectively reasonable for Jerdan to leave a person of Audit's age and experience in a potentially dangerous environment without, inter alia, providing a very specific exhortation or warning about the nature of the danger and the risk of death - The Alberta Court of Queen's Bench allowed the appeal and quashed the conviction - It remained a complete mystery as to why Audit undertook the task of dismantling the equipment - Consequently, it was entirely speculative that a more detailed warning would have prevented Audit's creation of the dangerous situation which resulted in his tragic death - For a potential danger to be foreseeable, there had to be at least a reasonable prospect or expectation that it would arise - "Foreseeable" was not the equivalent of "imaginable" - There was absolutely nothing to indicate that Audit would act alone and remove the remaining bolts on all the flanges, letting potentially dangerous gas vapors escape - Perhaps in retrospect a warning as morbid and specific as the risk of death if you disobeyed was a step that the accused might have executed - However, in the circumstances it was not "reasonably practicable" having regard to the reasonable care that the accused did take, nor as a step that would respond to a foreseeable potential danger - See paragraphs 49 to 65.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - Companies and their employees were engaged in a sweet well operation - The accused employer provided a horizontal pressure vessel, housed in a trailer, to measure the service flow rate of the well - The vessel included a separator and a Meter Run - When the Meter Run malfunctioned, the accused contacted the manufacturer and made arrangements to have it replaced - Jerdan, a supervisor with the accused, decided to prepare for replacement of the Meter Run - Prior to leaving for Grande Prairie to obtain parts, he instructed Audit to remove 12 to 24 flange bolts from the Meter Run in preparation of ProPipe's arrival - Bebee assisted Audit - Jerdan told Audit not to carry on any additional work until Jerdan returned from Grande Prairie - Audit and Bebee completed the work requested and Bebee left the trailer - When Jerdan returned, he found Audit lying on the floor in the trailer - The Meter Run had been removed - It was determined that Audit's death was suffocation due to the low level of oxygen as a result of the stratification of hydrocarbons, a product of the sweet gas - The accused was convicted of failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the employer's work contrary to s. 2(1)(a)(i) of the Occupational Health and Safety Act - The accused appealed, asserting that the trial judge erred in concluding that the accused had not established its reasonable care defence on a balance of probabilities - Despite the evidence adduced by the accused, the trial judge held that the accused had not done enough in this case to meet its statutory obligation, as it was not objectively reasonable for Jerdan to leave a person of Audit's age and experience in a potentially dangerous environment without, inter alia, providing Audit with a gas monitor before Jerdan went to Grande Prairie - The Alberta Court of Queen's Bench allowed the appeal and quashed the conviction - The trial judge's reasoning would impose an obligation to take steps in anticipation of a direct violation of very specific instructions - It pre-supposed that Jerdan would reasonably anticipate that Audit was going to disobey, thereby creating a potential danger, and that he should have anticipated that disobedience by taking defensive steps as would address that contingency - The law could not support such a retrospective standard where the violation was unrelated to the task assigned to and understood by Audit - For Jerdan to have supplied a gas meter would have been inconsistent with his instructions to simply remove half of the bolts and do no more and arguably might, in fact, have been misleading as to the extent of the work to be done - See paragraphs 66 to 69.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - Companies and their employees were engaged in a sweet well operation - The accused provided a horizontal pressure vessel, housed in a trailer, to measure the service flow rate of the well - The vessel included a separator and a Meter Run - When the Meter Run malfunctioned, the accused contacted the manufacturer and made arrangements to have it replaced - Jerdan, a supervisor with the accused, decided to prepare for replacement of the Meter Run - Prior to leaving for Grande Prairie to obtain parts, he instructed Audit to remove 12 to 24 flange bolts from the Meter Run in preparation of ProPipe's arrival - Bebee assisted Audit - Jerdan told Audit not to carry on any additional work until Jerdan returned from Grande Prairie - Audit and Bebee completed the work requested and Bebee left the trailer - When Jerdan returned, he found Audit lying on the floor in the trailer - The Meter Run had been removed - It was determined that Audit's death was suffocation due to the low level of oxygen as a result of the stratification of hydrocarbons, a product of the sweet gas - The accused employer was convicted of failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the employer's work contrary to s. 2(1)(a)(i) of the Occupational Health and Safety Act - The accused appealed, asserting that the trial judge erred in concluding that the accused had not established its reasonable care defence on a balance of probabilities - Despite the evidence adduced by the accused, the trial judge held that the accused had not done enough in this case to meet its statutory obligation, as it was not objectively reasonable for Jerdan to leave a person of Audit's age and experience in a potentially dangerous environment without, inter alia, preparing a hazard assessment - The Alberta Court of Queen's Bench allowed the appeal and quashed the conviction - Completing a hazard assessment would only make sense if Jerdan reasonably anticipated breach of the integrity of the system while he was away - An assessment would have been inconsistent with Jerdan's instructions to simply remove half of the bolts and do no more - A breach of the system could only arise if his instructions were disobeyed and no evidence supported any reasonable contemplation or indication of that risk - Given the bizarre and inexplicable circumstances leading to Audit's death, it was speculative that a hazard assessment would have had any impact on the outcome - See paragraphs 70 to 72.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - Companies and their employees were engaged in a sweet well operation - The accused employer proved a horizontal pressure vessel, housed in a trailer, to measure the service flow rate of the well - The vessel included a separator and a Meter Run - When the Meter Run malfunctioned, the accused contacted the manufacturer and made arrangements to have it replaced - Jerdan, a supervisor with the accused, decided to prepare for replacement of the Meter Run - Prior to leaving for Grande Prairie to obtain parts, he instructed Audit to remove 12 to 24 flange bolts from the Meter Run in preparation of ProPipe's arrival - Bebee assisted Audit - Jerdan told Audit not to carry on any additional work until Jerdan returned from Grande Prairie - Audit and Bebee completed the work requested and Bebee left the trailer - When Jerdan returned, he found Audit lying on the floor in the trailer - The Meter Run had been removed - It was determined that Audit's death was suffocation due to the low level of oxygen as a result of the stratification of hydrocarbons, a product of the sweet gas - The accused was convicted of failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the employer's work contrary to s. 2(1)(a)(i) of the Occupational Health and Safety Act - The accused appealed, asserting that the trial judge erred in concluding that the accused had not established its reasonable care defence on a balance of probabilities - The trial judge referred to Audit's age (21) and experience as significant factors, reasoning that Jerdan could foresee the danger to Audit in that it was not objectively reasonable to leave someone of Audit's age and experience in that environment without doing more - The Alberta Court of Queen's Bench allowed the appeal and quashed the conviction - Audit's age and experience considered in context were at least as consistent with an expectation that he would not undertake the unauthorized task in the circumstances - He had no experience in removal of a Meter Run - He was trained in the many dangers of his work environment, including the danger of leaking vapours from the dismantling of the Meter Run - Audit would not impress Jerdan by disobeying orders - He clearly understood the instructions - He successfully completed the task assigned to him together with a co-worker and confirmed to a second co-worker that he would do no more - The accused had no other information, nor any opportunity to acquire information which would have alerted it to the possibility that Audit would directly disobey clear instructions - Nothing in the evidence even hinted of a risk that Audit might take it upon himself to breach the integrity of the system, which he knew would result in danger - See paragraphs 73 to 79.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - Companies and their employees were engaged in a sweet well operation - The accused employer provided a horizontal pressure vessel, housed in a trailer, to measure the service flow rate of the well - The vessel included a separator and a Meter Run - When the Meter Run malfunctioned, the accused contacted the manufacturer and made arrangements to have it replaced - Jerdan, a supervisor with the accused, decided to prepare for replacement of the Meter Run - Prior to leaving for Grande Prairie to obtain parts, he instructed Audit to remove 12 to 24 flange bolts from the Meter Run in preparation of ProPipe's arrival - Bebee assisted Audit - Jerdan told Audit not to carry on any additional work until Jerdan returned from Grande Prairie - Audit and Bebee completed the work requested and Bebee left the trailer - When Jerdan returned, he found Audit lying on the floor in the trailer - The Meter Run had been removed - It was determined that Audit's death was suffocation due to the low level of oxygen as a result of the stratification of hydrocarbons, a product of the sweet gas - The accused was convicted of failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the employer's work contrary to s. 2(1)(a)(i) of the Occupational Health and Safety Act - The accused appealed, asserting that the trial judge erred in characterizing the work in which Audit was engaged as work of the employer - The Alberta Court of Queen's Bench found no reviewable error on this aspect of the trial judge's decision - Lonkar employed Audit as a well site operator - The work of Lonkar at this work site involved the operation of the horizontal pressure vessel to measure the surface flow rate of the well - The Meter Run was a component of the pressure vessel housed inside the trailer - When the Meter Run malfunctioned, Lonkar contacted the manufacturer ProPipe to replace it - However, Lonkar was ultimately responsible to have the malfunction remedied and Jerdan, Audit and Bebee undertook some preliminary work in that regard - See paragraphs 18 to 23.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - Companies and their employees were engaged in a sweet well operation - The accused employer provided a horizontal pressure vessel, housed in a trailer, to measure the service flow rate of the well - The vessel included a separator and a Meter Run - When the Meter Run malfunctioned, the accused contacted the manufacturer and made arrangements to have it replaced - Jerdan, a supervisor with the accused, decided to prepare for replacement of the Meter Run - Prior to leaving for Grande Prairie to obtain parts, he instructed Audit to remove 12 to 24 flange bolts from the Meter Run in preparation of ProPipe's arrival - Bebee assisted Audit - Jerdan told Audit not to carry on any additional work until Jerdan returned from Grande Prairie - Audit and Bebee completed the work requested and Bebee left the trailer - When Jerdan returned, he found Audit lying on the floor in the trailer - The Meter Run had been removed - It was determined that Audit's death was suffocation due to the low level of oxygen as a result of the stratification of hydrocarbons, a product of the sweet gas - The accused was convicted of failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the employer's work contrary to s. 2(1)(a)(i) of the Occupational Health and Safety Act - The accused appealed, asserting that the trial judge erred by failing to construe the statutory wording "as far as reasonably practicable" as part of the assessment of the Crown's burden of proof - The Alberta Court of Queen's Bench found no reviewable error on this aspect of the trial judge's decision - As for the trial judge's analysis of the actus reus, his approach did not undermine his conclusion that the Crown met its initial burden - The trial judge had ample evidence to support the finding of a prima facie case against the accused - See paragraphs 24 to 29.

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, refd to. [para. 15].

R. v. P.L.S., [1991] 1 S.C.R. 909; 122 N.R. 321; 90 Nfld. & P.E.I.R. 234; 280 A.P.R. 234, refd to. [para. 16].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 16].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 16].

R. v. Burke (J.) (No. 3), [1996] 1 S.C.R. 474; 194 N.R. 247; 139 Nfld. & P.E.I.R. 147; 433 A.P.R. 147, refd to. [para. 16].

R. v. Rose's Well Services Ltd. et al. (2009), 467 A.R. 1; 2009 ABQB 1, refd to. [para. 24].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 24].

R. v. Rose's Well Services Ltd. et al., [2007] A.R. Uned. 81; 2007 ABPC 16, refd to. [para. 31].

R. v. Daishowa Canada Co. (1991), 118 A.R. 112 (Prov. Ct.), refd to. [para. 31].

R. v. Bruin's Plumbing & Heating Ltd. (2003), 339 A.R. 191; 312 W.A.C. 191; 2003 ABCA 300, refd to. [para. 31].

Ontario (Minister of Labour) v. Dofasco Inc. (2007), 230 O.A.C. 132; 2007 ONCA 769, leave to appeal denied (2008), 386 N.R. 399; 253 O.A.C. 399 (S.C.C.), refd to. [para. 32].

R. v. Wyssen (J.) (1992), 58 O.A.C. 67; 10 O.R.(3d) 193 (C.A.), refd to. [para. 32].

R. v. Petro-Canada, 2008 ONCJ 558, refd to. [para. 36].

R. v. Cargill Ltd. (2000), 283 A.R. 100; 2000 ABPC 208, refd to. [para. 36].

R. v. B.C. Hydro and Power Authority, [1997] B.C.T.C. Uned. A98; 25 C.E.L.R.(N.S.) 51 (S.C.), refd to. [para. 36].

R. v. Sobeys Inc. (2000), 181 N.S.R.(2d) 263; 560 A.P.R. 263 (S.C.), refd to. [para. 36].

R. v. Altapro Cleaning and Disaster Restoration Ltd., [2004] A.R. Uned. 859; 36 C.C.E.L.(3d) 294; 2004 ABPC 197, refd to. [para. 37].

R. v. Quasar Petroleum Ltd., [1979] A.J. No. 597 (Dist. Ct.), refd to. [para. 37].

R. v. Timminco Ltd. (2001), 144 O.A.C. 231; 54 O.R.(3d) 21 (C.A.), refd to. [para. 40].

R. v. Rio Algom Ltd. (1988), 29 O.A.C. 349; 66 O.R.(2d) 674 (C.A.), refd to. [para. 40].

R. v. Brant Corrosion Control Inc., 2008 ONCJ 731, refd to. [para. 40].

Fullowka et al. v. Pinkerton's of Canada Ltd. et al. (2008), 433 A.R. 69; 429 W.A.C. 69; 2008 NWTCA 4, refd to. [para. 40].

Fullowka v. Royal Oak Ventures Inc. - see Fullowka et al. v. Pinkerton's of Canada Ltd. et al.

R. v. St. Mary's Cement, [1996] O.J. No. 5307 (C.J.), refd to. [para. 56].

Ontario (Minister of Labour) v. 733515 Ontario Inc., [2009] O.A.C. Uned. 15; 2009 ONCA 29, refd to. [para. 56].

R. v. Proboard (1990), 12 W.C.B.(2d) 567 (Ont. Prov. Ct.), refd to. [para. 57].

Ontario (Minister of Labour) v. Chrima Iron Work Ltd. (2005), 71 W.C.B.(2d) 265 (Ont. C.J.), refd to. [para. 58].

R. v. Timminco Ltd., 2004 ONCJ 344, refd to. [para. 59].

R. v. Z-H Paper Products Ltd. (1979), 27 O.R.(2d) 570 (H.C.), refd to. [para. 60].

Authors and Works Noticed:

Swaigen, John, Regulatory Offences in Canada: Liability and Defences (1992), p. 80 [para. 35].

Counsel:

Norm Keith and Chris Sabat (Gowling LaFleur Henderson LLP), for the appellant;

Marshall Hopkins (Agent for the Attorney General of Alberta), for the respondent.

This appeal was heard on April 28 and 29, 2009, by Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on June 4, 2009.