R. v. Rose's Well Services Ltd. et al., 2009 ABQB 1

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 02, 2009
• Citations: 2009 ABQB 1;(2009), 467 A.R. 1 (QB)

R. v. Rose's Well Services Ltd. (2009), 467 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.127

Her Majesty The Queen (respondent) v. Rose's Well Services Ltd., L.V. Trucking Ltd., Keori Trucking Ltd., Thesen's Trucking Ltd. and 315378 Alberta Ltd., carrying on business under the firm name and style of "Dial Oilfield Services" (appellants)

(050294784S1; 2009 ABQB 1)

Indexed As: R. v. Rose's Well Services Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

January 2, 2009.

Summary:

Two employees were seriously injured in an explosion while unloading a highly flammable petroleum product from their service truck into a metal storage tank. The trial judge, in a judgment reported [2007] A.R. Uned. 81, found the employer guilty of failing to ensure the health and safety of its workers (Occupational Health and Safety Act, s. 2(1)(a)(I)) and breaching s. 185(2)(a) of the General Safety Regulation. Particularly, the trial judge found that the employer failed to establish clear safety rules, failed to train its workers and failed to supervise them. The employer appealed, submitting that the trial judge failed to clearly identify the actus reus of the offences and erred in failing to order the Crown to provide particulars of the first count before trial. Further, the verdict was said to be unreasonable because the trial judge failed to consider or reconcile contradictory evidence, came to speculative conclusions unsupported by the evidence and demonstrated preferential treatment to prosecution witnesses.

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

Trade Regulation - Topic 7864

Industrial safety - Offences - Information - Sufficiency of general charge respecting failure to comply with regulations (incl. particulars) - Two employees were seriously injured in an explosion while unloading a highly flammable petroleum product from their service truck into a metal storage tank - The employer was charged under the general duty provisions of s. 2(1)(a)(I) of the Occupational Health and Safety Act (failing to ensure the health and safety of its workers) and breaching s. 185(2)(a) of the General Safety Regulation - The Crown disclosed the Workplace Health and Safety Report, disclosing six specific categories of alleged regulatory breaches - The employer sought particulars - The trial judge declined to order particulars, finding that the Report provided sufficient particulars - The Alberta Court of Queen's Bench held that there was no basis to interfere with the trial judge's discretionary decision - The employer had exact and reasonable information to enable it to fully establish its defence - There was no trial unfairness - The employer could offer no specifics or details as to how it was prejudiced - The employer was not caught by surprise by the evidence of any Crown witness - There was no evidence that the employer would have done anything different had particulars been ordered - See paragraphs 30 to 58.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - Two employees were seriously injured in an explosion while unloading a highly flammable petroleum product from their service truck into a metal storage tank - The employer was charged under the general duty provisions of s. 2(1)(a)(I) of the Occupational Health and Safety Act (failing to ensure the health and safety of its workers) and breaching s. 185(2)(a) of the General Safety Regulation - Particularly, the trial judge found that the employer failed to establish clear safety rules, failed to train its workers and failed to supervise them - The employer appealed, submitting that the trial judge misinterpreted the test for due diligence, holding it to a higher standard of proof than was appropriate, particularly his comment that the employer was virtually an insurer of safety compliance - The Alberta Court of Queen's Bench dismissed the appeal - Employers in Alberta were not insurers or guarantors of worker safety - Employers were only required to take reasonable care and do what was reasonably practical - However, the trial judge's erroneous statement did not manifest itself in the manner in which he actually dealt with the issue of due diligence - He referred to, but did not apply an "insurer" or "guarantor" standard - The trial judge's reasons as a whole showed that he applied the correct standard for the defence of due diligence - See paragraphs 88 to 111.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - [See first Trade Regulation - Topic 7883 ].

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - Two employees were seriously injured in an explosion while unloading a highly flammable petroleum product from their service truck into a metal storage tank - The employer was found guilty under the general duty provisions of s. 2(1)(a)(I) of the Occupational Health and Safety Act (failing to ensure the health and safety of its workers) and breaching s. 185(2)(a) of the General Safety Regulation - The employees breached the employer's safety and operating procedures and the General Safety Regulations by, inter alia, parking their truck too close to the storage tank (only three feet when industry standard was seven metres) and failed to properly ground the truck and bond it to the storage tank - The explosion resulted from either improper grounding or the revving truck engine igniting flammable fumes from the storage tank - The explosion would not have occurred had the truck been a safe distance away - The employer argued that it exercised due diligence; that the senior employee was solely at fault for ignoring his safety training - The Alberta Court of Queen's Bench dismissed the employer's appeal on the ground that the verdict was unreasonable on the evidence - The trial judge made no palpable and overriding error in his fact findings or credibility findings and did not misapply the facts to the law - The accident resulted from human error - Employee misconduct was not a defence - Whether the employer had safety rules exceeding the industry standard did not constitute due diligence where the trial judge reasonably found that safety rules were not effectively communicated to the employees - Accordingly, there was no clear distance safety rule - The finding that there was a failure to adequately train and supervise the employers was also reasonable - Not only was the employer not duly diligent in training the senior employee, that senior employee was training the other employee injured without the employer ascertaining whether the senior employee was an appropriate trainer - See paragraphs 112 to 254.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - Two employees were seriously injured in an explosion while unloading a highly flammable petroleum product from their service truck into a metal storage tank - The employer was charged under the general duty provisions of s. 2(1)(a)(I) of the Occupational Health and Safety Act (failing to ensure the health and safety of its workers) and breaching s. 185(2)(a) of the General Safety Regulation - The employer appealed, submitting that the trial judge failed to clearly identify the actus reus of the offences - The Alberta Court of Queen's Bench dismissed the appeal, stating that "to establish the actus reus of the general duty offence, the Crown may in some cases stop at the facts of the incident - the accident itself - as proof of the actus reus. This position adopts the 'accident as prima face breach' concept, which I endorse. ... proof of an accident or incident may be sufficient to establish the actus reus of an offence so long as the necessary elements are proven beyond a reasonable doubt. The effect of that is to then place the burden on the accused to establish a due diligence defence. In some cases, the Crown may decide to go further than merely proving the accident [which it did in this case], and it may attempt to prove the employer's culpability by proving specific failures. In other cases, however, the Crown may be content to prove the accident, and sit back and see what the employer's due diligence defence is (if any)." - In this case, the trial judge did not rely solely on the fact of the accident as proving the actus reus - To the employer's benefit, the trial judge arguably went beyond what was necessary to switch the burden to the employer to establish due diligence - In doing so, there was no error disadvantaging the employer - See paragraphs 59 to 87.

Trade Regulation - Topic 7889

Industrial safety - Particular offences - Failure to provide information, instruction, training or supervision - [See first Trade Regulation - Topic 7883 ].

Cases Noticed:

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 22].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 23].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 23].

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. 26].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 26].

R. v. Dorfer (F.S.) (1996), 69 B.C.A.C. 197; 113 W.A.C. 197; 104 C.C.C.(3d) 528 (C.A.), leave to appeal refused (1997), 212 N.R. 400; 95 B.C.A.C. 154; 154 W.A.C. 154; 112 C.C.C.(3d) vi (S.C.C.), refd to. [para. 27].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 28].

R. v. Ledcor Industries Ltd. (2004), 368 A.R. 1; 2004 ABPC 141, refd to. [para. 36].

R. v. Canadian General Electric Co. (1974), 17 C.C.C.(2d) 433 (Ont. H.C.), refd to. [para. 38].

R. v. McGavin Bakeries Ltd. (1950), 99 C.C.C. 330 (Alta. S.C.), refd to. [para. 39].

R. v. Daemore, [1990] B.C.J. No. 2919 (C.A.), refd to. [para. 39].

R. v. Thibodeau, [1955] S.C.R. 646, refd to. [para. 45].

Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, refd to. [para. 45].

R. v. IGL Canada (Western) Ltd. et al., [2007] A.R. Uned. 532; 2007 ABPC 268, refd to. [para. 47].

R. v. Côté, [1978] 1 S.C.R. 8; 13 N.R. 271, refd to. [para. 52].

R. v. Wyssen (J.) (1992), 58 O.A.C. 67; 10 O.R.(3d) 193 (C.A.), refd to. [para. 71].

R. v. General Scrap Iron & Metals Ltd. (2002), 322 A.R. 32; 2002 ABQB 665, refd to. [para. 71].

R. v. Moran Mining and Tunnelling Ltd., [2006] O.T.C. 496; 70 W.C.B.(2d) 422 (Sup. Ct.), refd to. [para. 71].

R. v. Seeley & Arnill Aggregates Ltd. (1993), 9 C.O.H.S.C. 1 (Ont. Gen. Div.), refd to. [para. 72].

R. v. Saskatchewan Wheat Pool (1999), 185 Sask.R. 114 (Q.B.), refd to. [para. 73].

R. v. Canadian National Railway Co. (2003), 172 Man.R.(2d) 1 (Prov. Ct.), refd to. [para. 74].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 83].

R. v. Maple Leaf Metal Industries Ltd. (2000), 269 A.R. 165; 2000 ABPC 95, refd to. [para. 97].

Ontario (Minister of Labour) v. Dofasco Inc. (2007), 230 O.A.C. 132; 87 O.R.(3d) 161 (C.A.), refd to. [para. 98].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, refd to. [para. 102].

R. v. Daishowa Canada Co. (1991), 118 A.R. 112 (Prov. Ct.), refd to. [para. 103].

R. v. Bruin's Plumbing & Heating Ltd. (2003), 339 A.R. 191; 312 W.A.C. 191 (C.A.), refd to. [para. 104].

R. v. Davis (D.J.) (1995), 165 A.R. 243; 89 W.A.C. 243; 98 C.C.C.(3d) 98 (C.A.), refd to. [para. 125].

R. v. R.W. (1992), 137 N.R. 214; 54 O.A.C. 164 (S.C.C.), refd to. [para. 132].

R. v. White and Johnson (1988), 93 A.R. 254 (Q.B.), refd to. [para. 159].

R. v. Morrissey (R.J.) (1995), 80 O.A.C. 161; 97 C.C.C.(3d) 193 (C.A.), refd to. [para. 186].

R. v. Ventrella (F.) et al., [1997] O.A.C. Uned. 603 (C.A.), refd to. [para. 187].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 188].

R. v. Stark (1984), 64 C.C.C.(2d) 231 (B.C.C.A.), refd to. [para. 189].

R. v. C.S., 2007 ONCJ 502, refd to. [para. 189].

R. v. G.K.M. (2004), 190 Man.R.(2d) 17; 335 W.A.C. 17; 2004 MBCA 96, refd to. [para. 191].

R. v. Galloway (R.) (2004), 249 Sask.R. 262; 325 W.A.C. 262; 2004 SKCA 106, refd to. [para. 192].

R. v. Zinck (T.R.), [2003] 1 S.C.R. 41; 300 N.R. 201; 257 N.B.R.(2d) 1; 674 A.P.R. 1, refd to. [para. 193].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355, refd to. [para. 194].

R. v. Sinclair (R.J.) (2005), 376 A.R. 91; 360 W.A.C. 91; 2005 ABCA 443, refd to. [para. 195].

R. v. Braich (A.) et al., [2002] 1 S.C.R. 903; 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1, refd to. [para. 196].

R. v. T.D. (2005), 230 N.S.R.(2d) 298; 729 A.P.R. 298 (C.A.), refd to. [para. 196].

R. v. Chittick (D.S.) (2004), 228 N.S.R.(2d) 81; 723 A.P.R. 81 (C.A.), refd to. [para. 197].

R. v. Kal Tire Ltd. et al., [2008] A.R. Uned. 585; 2008 ABQB 551, refd to. [para. 250].

Statutes Noticed:

General Safety Regulation - see Occupational Health and Safety Act Regulations (Alta.).

Occupational Health and Safety Act, R.S.A. 2000, c. O-2, sect. 2(1)(a)(i) [para. 114].

Occupational Health and Safety Act Regulations (Alta.), General Safety Regulation, Reg. 448/83, sect. 185(2)(a) [para. 115].

Counsel:

Brian M. Caruk and Marshall Hopkins (Alberta Justice), for the Crown;

Sydney A. Sabine (Duncan & Craig LLP) and David G. Myrol (McLennan Ross LLP), for the appellants.

This appeal was heard on June 11-12, 2008, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on January 2, 2009.