Alberta Court Of Appeal Clarifies Crown's Obligation In Proving Occupational Health And Safety Charges

Recently, the Alberta Court of Appeal released its decision in R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273. The Court of Appeal considered a legal issue that it had not previously addressed, namely whether the expression "as far as it is reasonably practicable for the employer to do so" in Alberta's occupational health and safety legislation was a codification of the due diligence defence.

Background

Precision Drilling ("Precision") was involved in drilling a well for Novus Energy approximately 30 kilometers from Grande Prairie, Alberta. On December 12, 2010, the drilling rig's crew was "tripping out" or removing pipe from a wellbore. One of the floorhands (the "Worker") was severely injured during the tripping out procedure and died the following day.

As a result of the accident, Precision was charged with two criminal offences: (i) failing to ensure the health and safety of the Worker "insofar as it was reasonably practicable to do so" as required by s. 2(1) of the Occupational Health and Safety Act (the "OHS Act"); and (ii) failing to take measures to eliminate workplace hazards as required by s. 9 of the Occupational Health and Safety Code 2009.

Provincial Court Decision

At the provincial court criminal trial, there was no evidence that confirmed how the Worker was injured as there were no witnesses to the accident. While it was clear that some part of the drilling equipment struck him, causing the fatal injuries, it was unclear exactly which part of the drilling equipment struck him.

Despite the lack of evidence about how the Worker was injured, the trial judge convicted Precision on both offences, and imposed a total fine of $400,000.1 The trial judge determined that Precision had failed to take all reasonable steps to avoid the accident as it had not installed an interlock device, which was an engineered solution that had been put in place by one of Precision's competitors. Precision appealed to the Court of Queen's Bench of Alberta.

Court of Queen's Bench Decision

On appeal to the Court of Queen's Bench, Madam Justice Veit overturned the convictions and ordered a new trial.2

With respect to the first offence, Madam Justice Veit noted that section 2(1) of the OHS Act is a strict liability offence, such that the Crown is required to prove the actus reus or the doing of the prohibited act, and once that is shown, the burden of proof shifts to the accused to show a defence of due diligence. Madam Justice Veit stated...