Reasonableness Prevails in Ruling on Due Diligence

By Daniel Standing LL.B., Editor, First Reference Inc.

In R v Kal Tire, 2020 ABCA 200 (CanLII), the Alberta Court of Appeal clarified the law on an employer’s defence of due diligence when charged with an occupational health and safety violation. The matter came before the court when Kal Tire appealed its conviction under the Occupational Health and Safety Act (“the OHSA”) for failing to ensure that a truck was rendered sufficiently inoperative while it was being serviced by one of its employees.

Background

A transport truck and its trailer were brought to the Kal Tire facility with a flat tire. There was a breakdown in communication between two employees, Town and Bachynsky, as to who would do the repair. Bachynsky put an “out of service” sign on the door of the truck and crawled underneath to repair it. Town disregarded the sign and instructed the driver to move the truck. As a result, Bachynsky was injured. Kal Tire was charged with five counts under separate provisions of the Occupational Health and Safety Act.

A conviction was entered on count #2. This count alleged that Kal Tire “fail[ed] to ensure, if machinery, equipment or powered mobile equipment was to be serviced, repaired, tested, adjusted or inspected, that no worker performs such work until all hazardous energy is isolated by activation of an energy-isolating device or otherwise rendered inoperative in a manner that provides equal or greater protection than the protection afforded under s. 212(1)(a) of the Safety Code contrary to s.212 of the Safety Code.” Acquittals were entered on three of the counts, and the remaining one was stayed.

The focus of the trial was whether Kal Tire’s lockout procedure was reasonable in the circumstances and whether it satisfied the defence of “due diligence.”

On appeal, Kal Tire alleged that the trial judge committed various errors. It alleged that the judge had rendered inconsistent verdicts, by acquitting on some of the charges and convicting on one. It also appealed the conviction on the basis that the trial judge erred in law by applying an absolute liability standard rather than a strict liability standard to the charge. Finally, it argued that the judge erred in his application of the due diligence test.

Through the lens of the “correctness” standard of review, the appeal court closely examined the conviction on count #2. It found that the remedial purpose of the OHSA is to maximize the safety of workplaces. The requirements placed on employers in s.9 of the OHSA support this purpose. Employers have the duty to assess the workplace and identify hazards. The appeal court noted that the provision under which Kal Tire was convicted, s.212 of the OHSA, was very broadly worded. It required the immobilization of “hazardous energy” during servicing operations. This was worded broadly enough to encompass the situation at issue.

As to Kal Tire’s contention about inconsistent verdicts, the court noted that counts 1 and 4 both incorporated “reasonableness” into the actus reus of the offence. Actus reus, a Latin term, means the action or conduct that is the constituent element of a crime, as opposed to the mental state of the accused. However, s.212, the source of count 2, set a different standard: that of neutralizing the hazardous energy by an energy-isolating device or equipment. A review of case law established that when reasonableness was part of the actus reus, the burden of proving a failure to take reasonable steps is on the Crown.

The Court of Appeal stated that with respect to the conviction, it was agreed that the truck did not have an “energy-isolating device.” The focus at trial was respecting s.212’s requirement of “equal or greater protection” than an “energy-isolating device.” The onus on the Kal Tire at trial was to prove due diligence on a balance of probabilities. Whether the Crown had rebutted that evidence was a live issue.

In its decision, the court elaborated on the defence of due diligence. Due diligence requires the accused to show that he or she took reasonable steps to avoid committing the statutorily barred activity. Acting reasonably in the abstract or general sense is not enough; the due diligence defence must relate to the commission of the prohibited act. In relation to count #2, Kal Tire had to show how it acted reasonably in relation to immobilizing hazardous energy during servicing operations to a level equivalent to that offered by an energy-isolating device. At trial, the judge determined that Kal Tire failed to establish this. The appellate court noted that the facts supported the laying of separate charges under the OHSA. Proving due diligence on one count did not necessarily mean that the defence was made out with respect to the other counts. Therefore, Kal Tire’s grounds of appeal relating to inconsistent verdicts were rejected.

Next, the court turned to the subject of strict liability for regulatory offences, given that Kal Tire alleged that the trial judge applied a test of absolute liability to count 2, even though it was conceded that due diligence is a recognized defence. It stated that occupational health offences have consistently been placed in the category of “strict liability offences.” This is a type of offence for which the there is no need for the Crown to prove mens rea (the accused’s mental state); the mere fact that the prohibited act was done constitutes the offence. To avoid liability, the accused must prove that he or she took reasonable care. The due diligence defence requires the employer to demonstrate that it “took all reasonable steps” to avoid the particular event. An important distinction is that this does not mean all conceivable steps.

Kal Tire alleged that the trial judge committed reviewable error in rejecting foreseeability as a relevant consideration. It also argued that the trial judge essentially applied a standard of absolute liability and improperly stated the test for the due diligence defence. The Court of Appeal stated that Kal Tire was correct in arguing that it would be an error to suggest that foreseeability is not a relevant consideration in occupational safety prosecutions. Foreseeability is a very wide concept, and employers have a duty to assess the workplace for hazards. Acknowledging that it would be difficult to see how an employer could be found guilty as a result of a hazard that was truly unforeseeable, the court drew a distinction between hazards that are truly unforeseeable, and unforeseeable ways that hazards manifest themselves.

In this case, the foreseeable hazard was the possibility of a worker being run over when a truck was brought in for servicing. Therefore, Kal Tire’s due diligence had to be measured against that hazard. The Court of Appeal concluded that the trial judge made no error in saying that foreseeability was not a factor with respect to count 2 because the foreseeability was essentially deemed by the statute. This is because under the OHSA, the “hazardous energy” had to be “isolated” or “rendered inoperative” in a manner equal to an “energy-isolating device.” There was no room for reasonable foreseeability to play a role in this equation.

However, the Court of Appeal found a reviewable error in the trial judge’s application of the test for due diligence. All Kal Tire had to prove was that it had taken all reasonable steps in attempting to use a method that was equally effective as an “energy-isolating device.” By requiring the employer to prove that it had used an energy-isolating device or equivalent, the judge effectively required the employer to negate a part of the actus reus of the offence. This error, according to the appeal court, was compounded by the judge’s subsequent suggestion that Kal Tire “could not” prove due diligence. To the appeal court, this suggested that there was nothing that any reasonable employer could have done that would be the due diligence equivalent of an energy-isolating device. If that were the case, s.212 of the OHSA would be an absolute liability offence. Rather, the issue at trial was simply whether the alternative precautions taken by Kal Tire were reasonable and amounted to due diligence. The test was not whether Kal Tire had actually used a lockout method equal to or of greater protection than an energy-isolating device. Therefore, although the Court of Appeal rejected the employer’s contention that there was inconsistency in the verdicts, it accepted that the trial judge misapplied the defence of due diligence in relation to count 2. As a result, the appeal was allowed, and a new trial was ordered.

Takeaways

Under occupational health and safety legislation, employers have a duty to make workplaces as safe as is reasonably possible. This generally means the identification and elimination of hazards, using administrative controls if necessary, providing personal protective equipment or otherwise mitigating the risk using a combination of these methods.

The result in this case turned on the correct legal application of the defence of due diligence. Employers can take note that occupational health and safety offences have consistently been placed in the category of strict liability offences. For these offences, there is no mental element; merely doing the prohibited act establishes the offence. To avoid liability and establish due diligence, an employer has to take all reasonable steps to avoid harm to its employees. As the court clarified in this case, the employer is not held to an impossible standard of taking all conceivable steps.

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