R. v. XI Technologies Inc.

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Sullivan, J.
• Citation: 2012 ABQB 549,(2012), 548 A.R. 203 (QB)
• Date: 10 May 2012

R. v. XI Tech. Inc. (2012), 548 A.R. 203 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. OC.028

Her Majesty the Queen (appellant) v. XI Technologies Inc. (respondent)

(090822206S1; 2012 ABQB 549)

Indexed As: R. v. XI Technologies Inc.

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

September 24, 2012.

Summary:

For a customer appreciation event, XI Technologies Inc. (XI Tech) rented a calf roping machine. An XI Tech employee (Shair) was fatally injured while operating the machine. XI Tech faced two charges under the Occupational Health and Safety Act: (1) failing to ensure Shair's health and safety as far as reasonably practicable, and (2) failing to ensure that the machine would safely perform the function for which it was intended or designed.

The Alberta Provincial Court, in a decision reported at [2011] A.R. Uned. 729, found that XI Tech had established a defence of due diligence on both counts and acquitted XI Tech. The Crown appealed. The essence of the appeal concerned the law of the due diligence defence.

The Alberta Court of Queen's Bench allowed the appeal and entered convictions on both counts.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - For a customer appreciation event, the employer rented a calf roping machine - An employee was fatally injured while operating the machine - The employer faced two charges under the Occupational Health and Safety Act - The trial judge found that the employer had established a defence of due diligence - On appeal, the Crown alleged that the trial judge erred in applying a subjective test to the employer - The Alberta Court of Queen's Bench held that a review of the trial judge's reasons showed that she did not err in articulating the test - "She confirmed that due diligence must be determined by objectively examining the conduct of the employer against that of a reasonable employer in the circumstances. I do not think that the trial judge erred in holding that '...the company in this case ought to be measured by a standard which takes into account the unique circumstances of this case' ... , or that 'the nature of the accused in this case, being a small technology company, contrasts with the larger industrial enterprises typically before the courts as a result of industrial accidents' ... . Rather, her comments in this regard reflect an appreciation that the objective standard is to be applied against a reasonable employer in the circumstances." - See paragraph 39.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - For a customer appreciation event, the employer rented a calf roping machine - An employee was fatally struck in the head by a steel lever as he was assisting at the machine - The lever was known to have prematurely released in the past - The employer was charged under the Occupational Health and Safety Act with failing to ensure the employee's health and safety as far as reasonably practicable - The trial judge found that the employer had established a defence of due diligence - The Alberta Court of Queen's Bench allowed the Crown's appeal - The trial judge's application of the test of due diligence to the facts constituted a palpable and overriding error, resulting in an unreasonable verdict - In so finding, the court was mindful of the rationale behind the introduction of occupational health and safety legislation - The trial judge erred in her assessment of "risk" versus "hazard" in finding that while the hazard of being struck by the lever was known, no one appreciated that there was a risk of serious injury - The specific type of injury did not have to be foreseen - The circumstances of the accident were not so bizarre as to be reasonably unforeseeable - The employer allowed the continued use of a machine despite a foreseeable potential source of danger - See paragraphs 76 to 93.

Trade Regulation - Topic 7874

Industrial safety - Offences - Defences - Due diligence - For a customer appreciation event, the employer rented a calf roping machine - An employee was fatally struck in the head by a steel lever as he was assisting at the machine - The lever was known to have prematurely released in the past - The employer was charged with failing to ensure that the machine would safely perform the function for which it was intended or designed (Occupational Health and Safety Regulation, s. 12(1)(b)) - The trial judge found that the employer had established a defence of due diligence - The Alberta Court of Queen's Bench allowed the Crown's appeal - The not guilty verdict was not supported by the evidence - Due diligence was measured against what a reasonable employer would have done in the circumstances - Here, the employer took possession of a machine that it had no familiarity with - The duties incumbent on the employer to ensure the machine would safely perform its function "dictate the requirement to ensure it received adequate operational instructions as opposed to leaving this step to employees who were untrained in this regard." - See paragraphs 94 to 112.

Trade Regulation - Topic 7883

Industrial safety - Particular offences - Failure to ensure health and safety of workers - [See second Trade Regulation - Topic 7874 ].

Trade Regulation - Topic 7894

Industrial safety - Particular offences - Failure to provide safe equipment - [See third Trade Regulation - Topic 7874 ].

Trade Regulation - Topic 7899

Industrial safety - Particular offences - Failure to comply with Regulations under health and safety legislation - [See third Trade Regulation - Topic 7874 ].

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. 13].

R. v. Lonkar Well Testing Ltd. (2009), 473 A.R. 1; 2009 ABQB 345, refd to. [para. 17].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 18].

R. v. Bruin's Plumbing & Heating Ltd. (2000), 272 A.R. 82; 2000 ABPC 118, refd to. [para. 27].

R. v. Savanna Drilling Corp. et al., [2011] A.R. Uned. 399; 2011 ABPC 75, refd to. [para. 27].

R. v. Fountain Tire (Olds) Ltd., [2011] A.R. Uned. 572; 2011 ABPC 236, refd to. [para. 28].

R. v. Kal Tire Ltd. et al., [2008] A.R. Uned. 585; 2008 ABQB 551, refd to. [para. 28].

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [para. 33].

R. v. Bruin's Plumbing & Heating Ltd. (2003), 339 A.R. 191; 312 W.A.C. 191; 2003 ABCA 300, refd to. [para. 35].

R. v. Sunshine Village Corp. (2010), 498 A.R. 248; 2010 ABQB 493, refd to. [para. 36].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331; 2006 SCC 12, refd to. [para. 36].

R. v. Syncrude Canada Ltd. (2010), 489 A.R. 117; 2010 ABPC 229, refd to. [para. 37].

R. v. Rose's Well Services Ltd. et al. (2009), 467 A.R. 1; 2009 ABQB 1, 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. 83].

R. v. Brant Corrosion Control Inc., 2008 ONCJ 731, refd to. [para. 86].

R. v. Procrane Inc., [2011] A.R. Uned. 103; 2011 ABPC 28, refd to. [para. 86].

R. v. Kidco Construction Ltd. (2009), 476 A.R. 152; 2009 ABPC 195, refd to. [para. 86].

R. v. Harvey (A.) Co. (2003), 221 Nfld. & P.E.I.R. 257; 661 A.P.R. 257 (N.L. Prov. Ct.), refd to. [para. 100].

R. v. Argentina Freezers and Terminals Ltd. - see R. v. Harvey (A.) Co.

R. v. General Scrap Iron & Metals Ltd. (2002), 322 A.R. 32; 2002 ABQB 665, affd. (2003), 327 A.R. 84; 296 W.A.C. 84; 2003 ABCA 107, refd to. [para. 101].

Statutes Noticed:

Occupational Health and Safety Act, R.S.A. 2000, c. O-2, sect. 2(1) [para. 25].

Occupational Health and Safety Act Regulations (Alta.), Occupational Health and Safety Regulation, Reg. 62/2003, sect. 12(1)(b) [para. 25].

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

Counsel:

Brian Caruk, for the appellant;

David Myrol, for the respondent.

This appeal was heard on May 10, 2012, before Sullivan, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment, with reasons, dated September 24, 2012.