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Employer Successful in Alberta Court of Appeal OHS Decision

19-May-20

By David Myrol and Dave Foster

Last week the Alberta Court of Appeal released its decision in R v. Kal Tire, 2020 ABCA 200. The case involved an incident at a commercial tire repair shop. A worker was injured when his co-worker directed the driver of the tractor trailer in for a flat repair to reposition the vehicle while the worker was beneath the trailer, in circumvention of the employer’s lock out procedures. This case set out the importance of proper application of the legal test for due diligence.

The employer faced 5 counts under the Alberta OHS Act and Code. At trial, the employer was acquitted of 3 of the counts, including the general duty count of failure to ensure, as far as reasonably practicable, the health and safety of the worker, and one more count was stayed by the Crown. The employer wound up being convicted on a specific duty count that it had failed to isolate all hazardous energy during service of the vehicle through the use of an energy-isolating device, or in a manner that provided equal or greater protection than an energy-isolating device.

The conviction was upheld on summary conviction appeal, and the decision was then brought before the Alberta Court of Appeal.

The Court set aside the conviction, ordering a new trial, based on what it determined to be a misapplication of the legal test for due diligence at trial. Due diligence is a cornerstone defence to strict liability OHS charges that requires an employer to prove that it took all reasonably practicable steps to avoid an act prohibited under OHS legislation.

In this case, the Court decided that the employer had been held to an incorrect standard to establish due diligence, which had required it to prove that it had used an energy-isolating device or an equal or greater alternative method to isolate all hazardous energy, when it had been established at trial that no such practicable alternative method was available. The Court correctly held on appeal that to make out a due diligence defence, the employer should have only been required “to prove that it had taken all steps that were reasonable in attempting to use an equally effective method”.

While the employer was successful in this case, it should also be noted that there was a dissenting opinion in the decision, which demonstrates how challenging it can be for employers to be successful when defending OHS charges.

McLennan Ross was counsel for the employer in this case, and it has extensive experience dealing with OHS prosecutions.

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