A Yukon judge has effectively decided they are. In Director (OHSA) v. North 60 Petro Ltd. et al the defendant’s dispatcher was instructed to pick up a truck that had undergone tire maintenance at a nearby maintenance supplier’s facility. The supplier informed the dispatcher work on the vehicle was complete. Unfortunately, the supplier’s mechanic was still working under the truck that had been left running by the supplier to warm it up. The mechanic suffered fatal crush injuries when the dispatcher proceeded to move forward.

There were a number of safety errors at work in the circumstances that contributed to this accident, including the supplier’s failures to properly supervise its mechanic and to implement adequate lock out procedures while maintenance work was underway. But the judge found that the dispatcher’s failure to complete a circle check was a proximate cause of the fatality because it would have detected that, contrary to what he had been told, maintenance work was still underway. The entire worksite included the rear and under carriage of the vehicle. Checking to ensure that the path of travel alone was unobstructed was insufficient before proceeding.

What is interesting about this case is that there is no analysis by the judge of whether, in light of all the circumstances, the dispatcher’s mistake of fact (that maintenance was complete) was reasonable requiring an acquittal. Instead, the judge concluded that the defendant’s inadequate training and supervision of the dispatcher (as to the requirement for circle checks) substantially contributed to the accident. This approach seems to ignore the circumstances. A full consideration of all of the circumstances of each case is what divides strict liability offences from ones of absolute liability.

Here is a copy of the decision (2014yktc4)