R. v. Northern Forage Inc., (2009) 472 A.R. 145 (QB)

• Judge: Manderscheid, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 26, 2009
• Citations: (2009), 472 A.R. 145 (QB);2009 ABQB 439

R. v. Northern Forage Inc. (2009), 472 A.R. 145 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JL.076

Her Majesty The Queen (appellant) v. Northern Forage Inc. (respondent)

(060008851S1; 2009 ABQB 439)

Indexed As: R. v. Northern Forage Inc.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Manderscheid, J.

July 16, 2009.

Summary:

The accused company produced hay for export. The harvested hay was double-compressed in a specially equipped compression facility to make the bales smaller prior to loading into shipping containers. An employee was killed while working in the compression facility. The accused was charged under the Occupational Health and Safety Act and its General Safety Regulation. The accused argued that the Act and Regulation did not apply, because the hay production operation was a "farming operation" that was exempted from the Act under the Farming and Ranching Exemption Regulation. "Farming operations" involving the "production of crops ... through the cultivation of the land" were exempted. "Farming operations" involved in the "processing of food or other products" were not.

The Alberta Provincial Court, in a judgment reported [2008] A.R. Uned. 722, held that the accused's operation was an exempt "farming operation". The Crown appealed.

The Alberta Court of Queen's Bench dismissed the appeal. The court agreed that the Act and Regulation did not apply to the accused's operation (including the compression facility), because the activity was a "farming operation" that was exempted from the Act under the Farming and Ranching Exemption Regulation.

Trade Regulation - Topic 7711

Industrial safety - General - Exemptions - Farming operations - The accused company produced hay for export - The harvested hay was double-compressed in a specially equipped compression facility to make the bales smaller prior to loading into shipping containers - An employee was killed while working in the compression facility - The accused was charged under the Occupational Health and Safety Act and its General Safety Regulation - The accused argued that the Act and Regulation did not apply, because the hay production operation was a "farming operation" that was exempted from the Act under the Farming and Ranching Exemption Regulation - "Farming operations" that were "directly or indirectly involved in ... the production of crops ... through the cultivation of the land" were exempted - "Farming operations" involved in the "processing of food or other products" were not - The trial judge held that the accused's operation was an exempt "farming operation" - The Alberta Court of Queen's Bench dismissed the Crown's appeal - The court agreed that the Act and Regulation did not apply to the accused's operation (including the compression facility), because the activity was a "farming operation" that was exempted from the Act under the Farming and Ranching Exemption Regulation - "Operation" referred to worker activities, not whether the employer was a business or enterprise - The activities occurring in the compression facility to de-stack and further compress the hay bales were directly or indirectly involved in the production of the hay crop and therefore attracted exempt status under the Act - The de-stacking, further compressing and wrapping of the hay bales in the compression facility did not constitute "processing" an agricultural product (no change in the substance or composition of the hay crop) - The court noted that whether the reasons for the Act's exemption of farming operations remained valid in present large scale mechanized farming enterprises was a matter for the legislature, not the courts.

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. 8].

Stewart v. Minister of National Revenue (2002), 288 N.R. 297; 2002 SCC 46, refd to. [par. 21].

Dale Estate Ltd. v. Brampton (Town), [1953] O.W.N. 919 (C.A.), refd to. [para. 24].

Nampa (Village) v. Municipal Government Board (Alta.) et al. (1998), 236 A.R. 173; 1998 ABQB 478, refd to. [para. 27].

Farm Products Marketing Act, Re, [1957] S.C.R. 198; 7 D.L.R.(2d) 25, refd to. [para. 44].

Elcan Forage Inc. v. Weiler (1992), 102 Sask.R. 197; 33 A.C.W.S.(3d) 249 (Q.B.), refd to. [para. 46].

Sunshine Coast (Regional District) v. Matkin, [2004] B.C.T.C. Uned. 284; 2004 BCSC 679, refd to. [para. 48].

Ministre du Revenu national v. Lomex Inc. (1998), 161 F.T.R. 169; 98 D.T.C. 6588 (T.D.), refd to. [para. 49].

Notre Dame Seed Plant Ltd. v. Provincial Municipal Assessor (Man.) (2004), 190 Man.R.(2d) 149; 335 W.A.C. 149; 2004 MBCA 161, refd to. [para. 50].

Range Grain Co. v. Minister of National Revenue, [1997] 2 C.T.D. 227; 128 F.T.R. 45 (T.D.), refd to. [para. 52].

T & T Mushroom Farm Ltd. v. Langley (Township) et al. (1997), 94 B.C.A.C. 7; 152 W.A.C. 7; 148 D.L.R.(4th) 519 (C.A.), leave to appeal refused (1997), 225 N.R. 398 (S.C.C.), refd to. [para. 54].

Spawnline Inc. v. Ontario (Minister of Labour), 1989 CarswellOnt 3597 (O.O.H.S.D.A.), refd to. [para. 55].

Anderson et al. v. Bear Hills Pork Producers Limited Partnership (2000), 198 Sask.R. 229; 2000 SKQB 505, refd to. [para. 56].

Dale Estate Ltd. v. Brampton (Town), [1954] 1 D.L.R. 55 (S.C.C.), refd to. [para. 59].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 62].

R. v. Lewis (B.) (2007), 224 O.A.C. 298; 2007 ONCA 349, refd to. [para. 63].

R. v. Brown (A.R.R.), [1993] 2 S.C.R. 918; 155 N.R. 225; 141 A.R. 163; 46 W.A.C. 163; 105 D.L.R.(4th) 199, refd to. [para. 63].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 170 D.L.R.(4th) 1, refd to. [para. 64].

Bell Express Vu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 64].

R. v. Independent Automatic Sprinkler (2009), 470 A.R.392; 2009 ABQB 264, refd to. [para. 67].

Statutes Noticed:

Farming and Ranching Exemption Regulation - see Occupational Health and Safety Act Regulations (Alta.).

Occupational Health and Safety Act, R.S.A. 2000, c. O-2, sect. 1(s), sect. 1(bb), sect. 2(1)(a)(i) [para. 10].

Occupational Health and Safety Act Regulations (Alta.), Farming and Ranching Exemption Regulation, sect. 2, sect. 3 [para. 10].

Counsel:

Marshall Hopkins (Alberta Justice Crown Prosecutor), for the appellant;

David G. Myrol (McLennan Ross LLP), for the respondent.

This appeal was heard on June 26, 2009, before Manderscheid, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 16, 2009.