In 2010 an employee, aged 32, of Precision Drilling Canada Limited was tragically killed when he was struck by drilling rig equipment while working as a floor hand on the rig floor. Following a five day trial, the Alberta Provincial Court found that the fatality had been caused by the employer’s breach of s. 2(1)(a)(i) of Alberta’s Occupational Health and Safety Act (the “OHSA”) and registered a conviction.

Section 2(1)(a)(i) provides that “every employer shall ensure, as far as it is reasonably practicable for the employer to do so… the health and safety of…workers engaged in the work of that employer…” Relying on precedent from the Alberta Court of Queen’s Bench, the trial judge found that: (1) the offence contrary to s. 2(1)(a)(i) was made out when the Crown proved beyond a reasonable doubt in a broad sense that something within the control of the company had caused the fatal injuries to the employee, after which; (2) to avoid conviction it was incumbent on the company to establish on a balance of probabilities that it had taken all reasonable steps to avoid the accident.

Not losing sight of the tragic circumstances on which the company’s conviction is based, and with great respect for the court and the trial judge, these findings are troubling in that they may have resulted in the company’s unlawful conviction.

There is no doubt that most regulatory offences, including most found in workplace safety legislation, are offences of strict liability. The Crown need only prove the wrongful act beyond a reasonable doubt, after which the defendant should be convicted unless it can rebut the presumption of fault – negligence – on a balance of probabilities by establishing that it exercised reasonable care against the risk of the breach.

The Supreme Court has found that, presumptively, regulatory offences are to be considered offences of strict liability. But there are exceptions. If the relevant provision includes language indicating that it was the legislature’s intention that the Crown must prove fault, fault becomes an essential element of the offence, which must be proved beyond a reasonable doubt. The fault requirement may be negligence or something more, depending on the language applied by the legislature in the statutory provision at hand.

Arguably, s. 2(1)(a)(i) is one of those rare exceptions. The offence created by it is the employer’s failure to ensure workplace safety by having in place reasonably practicable measures, or in other words, the employer’s negligent failure to ensure the workplace is safe. This compares to provisions that place specific safety requirements on employers (for example, guard pinch points) on which the failure to so do can lead to conviction unless the defendant can rebut the presumed element of negligence.

It may very well be that law enforcement will not commence a prosecution for a breach of s. 2(1)(a)(i) unless the breach has caused injury to a worker. However, worker injury is not an essential element of the offence. The fact that there is an accident linked to the breach is no more than an aggravating factor relevant to sentencing.

The charge before the trial court was particularized in relation to the deceased worker. But, respectfully, this did not change what was required of the Crown. Like all particulars, the role of particulars in this case was simply an aid to the employer in making full answer and defence. It cannot be seen as an essential element of the offence supplanting what the legislature has prescribed as the delict incorporating the offence.

In this case, the trial judge found that the breach was made out by proof of the accident, relieving the Crown of the burden of having to prove the gravamen of the offence; that the company had failed to ensure worker safety by establishing reasonably practicable measures. He then placed the burden of disproving the absence of reasonable practicable measures on the company, effectively requiring the company to prove its innocence, despite the constitutional guarantee to the contrary.

No doubt, the trial judge believed he was required to follow the available precedent. But think about the effect of his decision and that on which he relied. If both are right, every employer in Alberta bound by s. 2(1)a)(i) is prima facie in breach by the simple fact that they employ workers who may be at risk. That is all the Crown need prove to make out the “offence”. That cannot have been the legislature’s intention.

Here is a link to the Court’s June 1 decision.