R. v. Value Drug Mart Associates Ltd., 2014 ABPC 164

• Judge: Allen, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 29, 2014
• Citations: 2014 ABPC 164;(2014), 594 A.R. 315 (PC)

R. v. Value Drug Mart Assoc. Ltd. (2014), 594 A.R. 315 (PC)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. AU.055

Her Majesty the Queen v. Value Drug Mart Associates Ltd.

(121494314P1; 2014 ABPC 164)

Indexed As: R. v. Value Drug Mart Associates Ltd.

Alberta Provincial Court

Allen, P.C.J.

July 29, 2014.

Summary:

Williams was injured while working as an order picker on a motorized conveyor belt system in the employer's warehouse distribution centre. The employer was charged under the Occupational Health and Safety Act with (1) failing to ensure, as far as reasonable practicable, the health and safety of a worker and (2) failing to provide safeguards if a worker may accidentally, or through the work process, come into contact with moving party of machinery. The critical issue was whether the employer exercised the requisite due diligence.

The Alberta Provincial Court found the employer guilty on both counts. Applying the Kienapple principle, the second count was conditionally stayed.

Trade Regulation - Topic 7874

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

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - An employee was working on a motorized conveyor belt in the employer's warehouse distribution centre - While bending down near the conveyor belt to plug in an electric scale to an extension cord, the employee's hair and hand got tangled in the belt's unguarded drive shaft, causing injury - All other conveyor belts in the centre had guards to protect employees against coming into contact with moving machinery parts - There were no warning signs and the employee was given little instruction respecting the danger that the drive shaft presented - The Alberta Provincial Court found the employer guilty under the Occupational Health and Safety Act with (1) failing to ensure, as far as reasonable practicable, the health and safety of a worker and (2) failing to provide safeguards if a worker may accidentally, or through the work process, come into contact with moving party of machinery - Count 2 was conditionally stayed (Kienapple) - The Crown proved the actus reus of the offences beyond a reasonable doubt - As these were strict liability offences, the employer failed to prove on a balance of probabilities that it exercised due diligence - The danger created by an unguarded drive shaft was foreseeable and the employer failed to take reasonable steps to ensure the employee's safety and to ensure that guards were in place - The employer, not the company charged with installing and maintaining the conveyor belts, was responsible for creating a safe working environment - It was not reasonable for the employer to "miss" the fact that for four years all of the conveyor belts, except the one that caused the injury, were protected by barrier guards - Relying on the "common sense" of the employee did not constitute due diligence - See paragraphs 117 to 242.

Trade Regulation - Topic 7894.2

Industrial safety - Particular offences - Failure to use guard on hazardous equipment - [See Trade Regulation - Topic 7883 ].

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 117].

R. v. Chapin, [1979] 2 S.C.R. 121; 26 N.R. 289, refd to. [para. 117].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 125].

R. v. Rose's Well Services Ltd. et al. (2009), 467 A.R. 1 (Q.B.), refd to. [para. 128].

R. v. Lonkar Well Testing Ltd. (2009), 473 A.R. 1 (Q.B.), refd to. [para. 130].

R. v. Rio Algom Ltd. (1988), 29 O.A.C. 349; 46 C.C.C.(3d) 242 (C.A.), refd to. [para. 155].

R. v. XI Technologies Inc. (2012), 548 A.R. 203 (Q.B.), refd to. [para. 158].

R. v. Sunshine Village Corp. (2010), 498 A.R. 248 (Q.B.), refd to. [para. 162].

R. v. Kidco Construction Ltd. (2009), 476 A.R. 152 (Prov. Ct.), refd to. [para. 163].

R. v. General Scrap Iron & Metals Ltd. (2002), 322 A.R. 32 (Q.B.), refd to. [para. 175].

R. v. Daishowa Canada Co. (1991), 118 A.R. 112 (Prov. Ct.), refd to. [para. 188].

R. v. Bruin's Plumbing & Heating Ltd. (2003), 339 A.R. 191; 312 W.A.C. 191 (C.A.), refd to. [para. 193].

R. v. Shell Canada Ltd. (1999), 253 A.R. 143; 1999 ABPC 105, refd to. [para. 196].

Ontario (Minister of Labour) v. Dofasco Inc. (2007), 230 O.A.C. 132; 230 C.C.C.(3d) 280 (C.A.), refd to. [para. 224].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 228].

R. v. Ewanchuk (S.B.), [1999] 1 S.C.R. 330; 235 N.R. 323; 232 A.R. 1; 195 W.A.C. 1, refd to. [para. 228].

Ontario v. London Excavators & Trucking Ltd. (1998), 110 O.A.C. 94; 125 C.C.C.(3d) 83 (C.A.), refd to. [para. 236].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 243].

R. v. Prince, [1986] 2 S.C.R. 480; 70 N.R. 119; 45 Man.R.(2d) 93, refd to. [para. 243].

Counsel:

A. Magill, for the Crown;

K. Teskey, for the accused.

This matter was heard on June 9-11, 2014, at Edmonton, Alberta, before Allen, P.C.J., of the Alberta Provincial Court, who delivered the following judgment on July 29, 2014.