Employers are required by law to take reasonable precautions to ensure the health and safety of their workers. Criminal or quasi-criminal charges may occur as a result of workplace accidents. In defending against charges, employers often request "particulars" in order to make sure they have the full answer and defense to charges. Such request however raises two issues in Alberta. First, whether the "accident as a prima facie breach" principle precludes an order for particulars when an employer is charged with breaching its general duty to ensure the health and safety of its workers. Second, if not, whether a reference must be made to the Crown's disclosure in order to decide whether a general duty charge is sufficiently particularized to allow for a fair trial.
A worker installing a side boom onto a caterpillar tractor suffered serious injuries to his foot after the boom stick (a 28-foot tubular metal frame) fell from the hook and sling securing it.
In December 2015, Midwest Pipelines Inc. ("Midwest"), was charged with eight counts under the Occupational Health and Safety Act, R.S.A. 2000, Chapter O-2, the Alberta Occupational Health And Safety Code 2009 and the Occupational Health and Safety Regulation, Alta Reg 62/2003. Count 1 alleged a breach of Midwest's general duty to ensure, as far as reasonably practicable, the health and safety of the worker, as follows:
Count 1: On or about December 12, 2013, at or near Mannville, Alberta, being an employer did fail to ensure, as far as it was reasonably practicable to do so, the health and safety of Allen Kshyk, a worker engaged in the work of that employer, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act, R.S.A. 2000, Chapter O-2, as amended.
As part of the initial disclosure, the Crown provided over 2,500 pages of materials consisting of witness statements, photographs, diagrams as well as other documentary evidence and an OHS incident report ("OHS Report") recommending charges against Midwest.
Midwest requested particulars for Count 1 because of, what they deemed to be a discrepancy between the charges recommended in the OHS Report and issues raised in the Crown's expert report and the charges that were ultimately laid in the Information.
The Court determined that a request for particulars from an accused in cases not involving the "general duty" violation is significant because it imposes a higher burden of proof on the Crown. By virtue of such a request, the Court recognized that the Crown must prove "beyond a reasonable doubt" all of the specific acts, omissions and breaches described in the particularized count.
The Crown, in this case had relied instead on the "accident as prima facie breach" principle, which allows it to prove the "actus reus" for a general duty charge by proving that 1) there was an employee, 2) the employee was injured in an accident, and 3) the employee was performing his or her duties in the course of their employment when injured. The burden then shifts to the employer to establish a "due diligence" defence at trial. This, according to the Court, was in line with the strict liability regime found in occupational health and safety matters.
The Court determined that granting such a request would displace the analysis of the employer's due diligence at the stage of the Crown's onus to establish the actus reus beyond a reasonable doubt, instead of assessing the employer's due diligence subsequently, on a balance of probabilities. In other words, since granting the request for particulars would force the Crown to establish all of the specific acts, omissions and breaches beyond a reasonable doubt, it would impose an excessive burden of proof, potentially allowing the employer to avoid having to establish its due diligence on a balance of probabilities.
The Court held that it was not unreasonable to infer a wrongful act by the employer, thus allowing proof of the accident to constitute a prima facie breach, subject to the defence of due diligence. As a result, Midwest's application for particulars on Count 1 was dismissed.
The Court also analyzed the second issue brought by the parties, which was the sufficient particularization of the charge. Regarding the second issue, the Court determined that the essence of the principle governing whether to order further particulars is to ensure that the accused is "reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and fair trial".
The Crown alleged in this case that all of the information available to the accused, including the Crown's disclosure, should be considered in deciding "whether the accused has been reasonably informed of the charges alleged against him." Midwest on the other hand argued that each count must be sufficiently particularized without making reference to disclosure.
The Court agreed with Midwest on the second issue. According to the Court, Midwest should not have to "wade through 2,500 pages of disclosure to determine what it is being charged with." The Court explained in its decision, that as the disclosure to Midwest was based on the charges facing it and not the other way around, the alleged acts or omissions should be clear from the wording of the charge.
In considering the wording of Count 1, and so, without making reference to disclosure, the Court held that Midwest should have received particulars with respect to Count 1 in order to make full answer and defence to the charge. However, since the Court previously held that the "accident as prima facie breach" principle applied, it dismissed Midwest's application for further particulars but for the ones agreed to by the Crown which consisted of the following underlined portions:
Count 1: On or about December 12, 2013, at or near Mannville, Alberta, being an employer did fail to ensure, as far as it was reasonably practicable to do so, the health and safety of Allen Kshyk, a worker engaged in the work of that employer, who was injured when a load being lifted, namely a boom stick (A-boom) fell out of its hook and onto his foot, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act, R.S.A. 2000, Chapter O-2, as amended.
The Court added in obiter that if it had to consider disclosure in determining whether to provide particulars, two interrelated issues would arise which the Court wanted to avoid. First, the Crown would be allowed to rely on statements of facts in the disclosure and not be required to prove them beyond a reasonable doubt. Particularizing a count places a higher onus on the Crown, to prove all specific acts, omissions and breaches beyond a reasonable doubt. Second, the Crown would be in a position to rely on anything new that may emerge in the evidence to sustain the general duty charge. As a result, the Court determined that the Crown should provide particulars about what it already knows, and amend the Count subsequently, if necessary, rather than broaden the scope of its review.