Workplace Accident Is Not Enough to Prove Employer Committed General Duty Offence Under OHSA

by & Ava Z Moradi, JD, Editor, First Reference Inc.

Following a fatal workplace accident, the Alberta Court of Appeal provided a more comprehensive framework for the actus reus requirement of the general duty provision in Alberta’s Occupational Health and Safety Act (OHSA) and clarified that the mere occurrence of a workplace accident does not prove the employer committed a violation.

Fatal workplace accident – Did the employer violate its “general duty” to ensure the health and safety of an employee?

During a “tripping out” procedure on December 20, 2010, at an employer’s drilling rig, an employee suffered a workplace accident and died from blunt cranial trauma and multiple cranial fractures after some part of the drilling equipment struck the employee when torque from the drillstring was released.

The employer was charged with the following two offences contrary to the OHSA:

  1. failing its general duty to ensure the health and safety of an employee, contrary to section 2(1); and
  2. failing to adopt engineering or administrative controls in order to mitigate workplace hazards, contrary to section 9(1).

At trial, Alberta’s Provincial Court convicted the employer of both offences.

[14] The Crown’s theory at trial was that in the moments preceding the incident, the driller failed to release trapped table torque which caused the bales and elevators to turn uncontrollably and strike the employee as he stood preparing to lift the slips.

[15] For Count 1, the Crown relied upon the “accident as prima facie proof of breach” approach. Under this approach, the Crown was required to show that the defendant controlled the activities undertaken, and while those activities were being undertaken, the worker was exposed to a harmful situation. Under Count 2, which related to allegations that [the employer] failed to adopt engineering or administrative controls to mitigate the workplace hazard of uncontrolled release of trapped table torque from the drillstring, the Crown took the position that it was not required to prove that an engineering control was practicable for [the employer] to implement. Rather, that obligation fell to [the employer] to prove as an element of its due diligence defence.

The employer appealed the trial judge’s decision where the Court of Queen’s Bench overturned both convictions and ordered a new trial. The Crown sought and obtained leave to appeal to the Alberta Court of Appeal.

Alberta Court of Appeal analysis and decision

Appeals from a summary conviction are limited to questions of law alone, and are thus reviewable at the Court of Appeal on a correctness standard.

As stated in the Appeals decision, [4] One of the questions upon which leave was granted requires this Court to consider a legal issue that has not been addressed by this Court before, namely, whether the expression “as far as it is reasonably practicable for the employer to do so” is part of the actus reus of s. 2(1) of the
OHSA [general duty clause].

Actus reus is Latin for the “guilty act” and has been described as the wrongful deed that comprises the physical components of an offence and that generally must be coupled with mens rea to establish criminal liability: see Black’s Law Dictionary, 10th ed, sub verbo “actus reus”. The actus reus of a strict liability safety offence requires the same level of proof as a criminal charge, which is proof beyond a reasonable doubt.

Informed by the Supreme Court of Canada’s seminal decision in R v Sault Ste. Marie (City), [1978] 2 SCR 1299, 85 DLR (3d) 161 on strict liability offences, and R v Rose’s Well Services, 2009 ABQB 1, 467 AR 1 on workplace accident as prima facie proof of breach approach, the Crown argued that the facts of the accident itself are enough to establish the actus reus of the general duty offence under OHSA.

The Crown explained that the expression “as far as it is reasonably practicable for the employer to do so” in s. 2(1) of the OHSA identifies the provision as a strict liability offence and is a reference to the due diligence defence. The Crown argued that if it is required to prove that it was reasonably practicable for the employer to ensure the health and safety of a worker, then the effect is to require the Crown to prove negligence.

The employer, on the other hand, argued that these words “as far as it is reasonably practicable for the employer to do so” must mean something more than the basic facts of the workplace accident, that sometimes the facts alone are not enough to lead to the inference that the employer violated the law. Mere contravention of a safety rule does not necessarily mean there is proof beyond a reasonable doubt of a strict liability offence.

The Court of Appeal disagreed with the Crown by finding its formulation narrow as it does not provide what is required to be proven when the facts of the accident are insufficient. The majority decision held that the expression “as far as it is reasonably practicable for the employer to do so” constituted one element of the actus reus. Therefore, opting to interpret the general duty provision with a more comprehensive framework for the actus reus requirement, for an offence under the general duty of the OHSA, the Crown must establish beyond a reasonable doubt that:

  1. The worker must have been engaged in the work of the employer;
  2. The worker’s health or safety must have been threatened or compromised (i.e., an unsafe condition); and
  3. It was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake.

Ultimately, the Court of Appeal dismissed the appeal and ordered the matter to return for a new trial using the new framework.

Takeaways for employers

Employers are not always automatically at fault when a workplace accident occurs. This case sheds light into new considerations when determining whether an employer has violated its general duty to ensure the health and safety of employees at the workplace. OHS due diligence as a legal defence is becoming extremely crucial for organizations charged under the Occupational Health and Safety legislation. Therefore, if charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, due diligence requires employers to take all reasonable precautions, under the circumstances, to prevent injuries or accidents in the workplace. Moreover, this duty also applies to situations that the Occupational Health and Safety legislation has not addressed elsewhere.

To prove your OHS due diligence, organizations should be able to demonstrate the following with evidence (this list is not exhaustive):

  • Identification of risks and hazards exposure of your employees through a comprehensive job hazard analysis or risk assessment;
  • Development of company specific health and safety program including policies and procedures and safety standard operating procedures based on the job hazard analysis or risk assessment;
  • Exceeding minimum standards for policies, procedures, and operating procedures
  • Communicating to all employees all health and safety policies, procedures, and operating procedure and standards;
  • Educating employees on the health and safety risks and steps to prevent hazards;
  • Training all employees on company specific health and safety policies, procedures, and applicable operating procedures and standards;
  • Conducting ongoing hazard identification, regular inspections, and correction of hazards;
  • Review of the health and safety program and performing safety compliance audits;
  • Having ongoing reminders and enforcement through disciplinary actions;
  • Documenting the procedures adopted for investigating accidents and/or incidents;
  • Proper posting of company safety rules, policies and procedures and updated health and safety legislation and regulations making it easily accessible to all workers;
  • Providing appropriate orientation and training to existing and new employees.

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