R. v. Sunshine Village Corp., (2010) 498 A.R. 248 (QB)

• Judge: Bensler, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 04, 2010
• Citations: (2010), 498 A.R. 248 (QB);2010 ABQB 493

R. v. Sunshine Village Corp. (2010), 498 A.R. 248 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.161

Her Majesty the Queen (respondent) v. Sunshine Village Corporation (appellant)

(060777521S1; 2010 ABQB 493)

Indexed As: R. v. Sunshine Village Corp.

Alberta Court of Queen's Bench

Judicial District of Calgary

Bensler, J.

July 23, 2010.

Summary:

Sunshine Village Corporation, the owner of a ski resort, appealed the conclusions reached on a finding of strict liability for the fatal consequences of a work site incident. The trial judge convicted the company on a charge under s. 2(1)(a)(i) of the Occupational Health and Safety Act, relating to failure to ensure the health and safety of a worker. The judge found that, although the death was "the result of the momentary carelessness or lack of attention of three employees, the criminal liability of the company stems from the lack of steps taken to support these otherwise careful employees." The company appealed. All grounds of appeal were linked with the defence of due diligence.

The Alberta Court of Queen's Bench allowed the appeal. The trial judge failed to properly address the issue of foreseeability in the context of the due diligence defence, and erred in concluding that the company failed to take all reasonable steps.

Criminal Law - Topic 30

General principles - Mens rea or intention - Whether offence one of mens rea or strict liability - [See first Trials - Topic 1172 ].

Criminal Law - Topic 264

General principles - Corporations - Criminal liability - Absolute and strict liability offences - [See second Trials - Topic 1172 ].

Criminal Law - Topic 7463

Summary conviction proceedings - Appeals - General - Scope of appeal - [See Trials - Topic 1176 ].

Criminal Law - Topic 7659

Summary conviction proceedings - Appeals - Grounds - Verdict unreasonable or unsupported by evidence - [See Trials - Topic 1176 ].

Trade Regulation - Topic 7870

Industrial safety - Offences - Mens rea - Whether required - [See first Trials - Topic 1172 ].

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - [See first Trials - Topic 1172 ].

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - [See second Trials - Topic 1172 ].

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - The accused company appealed the conviction on a finding of strict liability for the fatal consequences of a work site incident - All grounds of appeal were linked with the defence of due diligence - The Alberta Court of Queen's Bench stated that "[r]egulatory offences are prima facie offences of strict liability unless there is language in the legislation which indicates the intent to include mens rea ... As a general rule, regulatory offences provide for the dismissal of charges where the accused exercised due diligence by taking all reasonable steps in the circumstances to prevent the incident which forms the basis of the charge" - See paragraph 66.

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - The accused company appealed the conviction on a finding of strict liability for the fatal consequences of a work site incident - The trial judge convicted the company on a charge under s. 2(1)(a)(i) of the Occupational Health and Safety Act, relating to failure to ensure the health and safety of a worker - No breach of a legislatively mandated safety precaution or industry standard was found - All grounds of appeal were linked with the defence of due diligence - The Alberta Court of Queen's Bench allowed the appeal - The trial judge failed to properly address foreseeability - It fell to the trial judge to determine in the absence of any specific regulatory breach whether the company had taken such steps as were reasonably practical in the circumstances to ensure safety - Employee error was relevant in the defence of due diligence and in particular with regards to foreseeability - The employees were trained, were aware of the danger, and knew the procedure that was in place - The procedure was reasonable and standard practice - The employees had no explanation why they did not follow the procedure - The "inexplicable scenario" that resulted was "bizarre and unforeseeable" - The company had established that it took all reasonable care - It was not required to achieve a standard of perfection - See paragraphs 68 to 96.

Trials - Topic 1176

Summary convictions - Strict liability offences - Appeals - Scope of - The accused company appealed from a summary conviction under s. 2(1)(a)(i) of the Occupational Health and Safety Act - The Alberta Court of Queen's Bench stated that, "[w]hen conducting a review under s. 686(1)(a)(i) of the Criminal Code to determine whether a verdict is unreasonable, the Court must carefully consider all the evidence that was before the trier of fact and to some extent to re-weigh the effect of the evidence ... Allegations of unreasonable verdict generally involve questions of fact, inferences of fact, or questions of mixed fact and law" - The court agreed with the Crown that the bulk of the accused's arguments did not involve a pure question of law with the accompanying standard of correctness, but, rather questions of fact, as well as mixed fact and law where the appropriate standard of review was palpable and overriding error - See paragraphs 49 to 56.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 38].

R. v. Rose's Well Services Ltd. et al. (2009), 467 A.R. 1; 2009 ABQB 1, refd to. [para. 40].

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. 51].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 51].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 52].

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. 53].

R. v. Lonkar Well Testing Ltd. (2009), 473 A.R. 1; 2009 ABQB 345, refd to. [para. 54].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 67].

R. v. Bruin's Plumbing & Heating Ltd. (2003), 339 A.R. 191; 312 W.A.C. 191; 2003 ABCA 300, refd to. [para. 69].

R. v. Wyssen (J.) (1992), 58 O.A.C. 67; 10 O.R.(3d) 193 (C.A.), refd to. [para. 70].

R. v. Syncrude Canada Ltd. (2010), 489 A.R. 117; 2010 ABPC 229, refd to. [para. 71].

Ontario (Minister of Labour) v. Dofasco Inc. (2007), 230 O.A.C. 132; 2007 ONCA 769, leave to appeal refused (2008), 386 N.R. 399; 253 O.A.C. 399 (S.C.C.), refd to. [para. 72].

R. v. Timminco, 2004 ONCJ 344, refd to. [para. 76].

R. v. Daishowa Canada Co. (1991), 118 A.R. 112 (Prov. Ct.), affd. (1993), 135 A.R. 179; 33 W.A.C. 179 (C.A.), refd to. [para. 77].

R. v. Rio Algom Ltd. (1988), 29 O.A.C. 349; 66 O.R.(2d) 674 (C.A.), refd to. [para. 79].

R. v. Kidco Construction Ltd. (2009), 476 A.R. 152; 2009 ABPC 195, refd to. [para. 81].

Statutes Noticed:

Occupational Health and Safety Act, R.S.A. 2000, c. O-2, sect. 2(1)(a)(i) [para. 65].

Counsel:

Marshall W. Hopkins, for the respondent;

J. Paul Brunnen, for the appellant.

This summary conviction appeal was heard on March 4, 2010, by Bensler, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who filed the following reasons for judgment on July 23, 2010.