​On September 9, 2016, the Court of Queen’s Bench of Alberta set aside two convictions under Alberta’s Occupational Health and Safety legislation and ordered a new trial against Precision Drilling. On appeal from the Provincial Court of Alberta, Madam Justice Veit of the Court of Queen’s Bench held that the Crown had failed to prove that Precision Drilling had committed any wrongful act. (See full decision) Further, the Court determined that the trial judge had made a palpable and overriding error when he found that Precision Drilling’s competitor had an engineered solution in place that could have avoided this type of accident.

Background

Precision Drilling was involved in drilling a well for Novus Energy approximately 30 kilometres from Grande Prairie, Alberta. On December 12, 2010, the rig’s crew was “tripping out” or removing pipe from a well hole. One of the floorhands (the "Worker"), was severely injured from blunt cranial trauma he suffered during the tripping out procedure. The Worker died the following day.

As a result of the accident, Precision Drilling was charged with two offences: (i) failing to ensure the health and safety of Mr. Peterson insofar as it was reasonably practicable to do so as required by s. 2(1) of the Occupational Health and Safety Act (OHS Act); and (ii) failing to take measures to eliminate workplace hazards as required by s. 9 of the Occupational Health and Safety Code 2009.

At trial, there was no evidence from anyone about how the Worker was injured as no witness saw any contact between the drilling equipment and the Worker. It was evident that some part of the drilling equipment struck the Worker when torque from the drillstring was released, but there was no evidence of which part of the assembly struck Mr. Peterson.

Despite the lack of evidence about how the Worker was injured, the trial judge convicted Precision Drilling of both offences, and imposed a total fine of $400,000. The trial judge determined that Precision Drilling had failed to take all reasonable steps to avoid the accident as it had not installed an interlock device, an engineered solution that had been put in place by Precision Drilling’s competitor. The trial judge’s full reasons for conviction can be found online. Precision Drilling appealed to the Court of Queen’s Bench of Alberta.

Decision

Madam Justice Veit of the Court of Queen’s Bench of Alberta noted that while a trial judge’s findings of fact attract considerable deference, they are not absolutely protected from review. Madam Justice Veit concluded that Precision Drilling’s appeal was allowed and the conviction was set aside. She noted that the most important reason for her conclusion was that the trial judge made a palpable and overriding error when he found that Precision Drilling’s industry competitor’s had adopted an interlock device. This finding was contrary to the evidence and, because of its effect on the due diligence defence, that finding had an overriding effect on the trial judge’s assessment of the defence position.

With respect to the first offence, Madam Justice Veit noted that that section 2(1) of the OHS Act is a strict liability offence and all the Crown is required prove for this type of offence is the actus reus, or the doing of the prohibited act. The Crown does not have to prove that the accused had mens rea (evil intention), knowledge of wrongfulness or reckless disregard of consequences, or any other subjective fault element.

The Court noted that when dealing with workplace accidents, sometimes proof of the consequence adequately establishes that a wrongful act was committed: for example, if a worker falls through a hole in the floor, or falls off a platform because there was no guardrail, or falls off a roof because the employer did not provide a safety harness, a court is entitled to conclude that the Crown has proved the necessary actus reus - that the employer committed a wrongful act – which puts the accused to a due diligence defence.

In this case, in order to establish the actus reus of the offence charged, the Crown was required to prove that: (i) Precision Drilling was Mr. Peterson’s employer; (ii) the drilling rig had the capacity to endanger the safety of a person; (iii) Precision Drilling committed a wrongful act. Madam Justice Veit held that in this case, there was no clear cause for Mr. Peterson’s fatal injuries, except of course his contact with rig machinery. What was missing from the Crown’s case was that Precision committed a wrongful act. The Court noted that the prosecution could not prove the actus reus simply by relying on the accident itself. There are some cases in which a wrongful act can be inferred but there are others in which a fair inference cannot be drawn. Here, the circumstantial evidence was not enough to prove the offence.

Madam Justice Veit then considered whether Precision Drilling had shown due diligence in preventing accidents during the “tripping out” operation in case she was wrong in concluding that the Crown did not prove the actus reus of the offence. She noted that the role of a trial judge in assessing due diligence is to identify the appropriate standard of care in the particular situation which is being assessed. Madam Justice Veit noted that it would be rare that a trial judge could do this in a technical field without reliance on expert evidence, and rarer still that a trial judge could impose their own standard of care on an industry.

The Court noted that while the trial judge was correct in stating that compliance with industry standards and legislation does not, of itself, establish that reasonable care was taken, generally following industry standards is evidence of due diligence. In the Court’s view, the trial judge erred in failing to properly assess industry standards and legislation. The evidence was that Precision Drilling had followed industry standards and legislative requirements. Further, the trial evidence established that Precision Drilling was very concerned about employee safety. It had good safety records, it emphasized the need for safety and it did not rely on apprenticeship training or previous work experience to ensure its workers were safe but rather provided training to all workers. Further, on the day of the accident, Precision Drilling had held a safety meeting on the tripping out procedures.

The Court held that in assessing due diligence the trial judge was required to assess whether the steps which Precision Drilling had taken, including compliance with industry standards and statutory requirements and government enforcement of employee work safety was, on a balance of probabilities, what a reasonable drilling company would have done in the circumstances. Precision Drilling did not have to take all conceivable steps to avoid injury. It was only required to take all reasonable steps to avoid injury.

In this case, the trial judge had focused on Precision Drilling failing to install an interlock device on its rigs as one of Precision Drilling’s competitors had done, despite the fact that the use of an interlock device was not mandatory by government regulation nor adopted by the industry as an operating standard. Based on this, the Court concluded that the trial judge made a palpable and overriding error when he found that Precision Drilling did not exercise due diligence by failing to install an interlock device.

Implications

From a legal perspective, this case confirms that although charges under occupational health and safety legislation are strict liability offences, the Crown still must rely on a factual foundation to establish a breach of a duty by the employer. While there are some cases in which a wrongful act can be inferred based on the circumstantial evidence, there are others where such an inference cannot be drawn.

From an employer’s perspective, this case indicates that while compliance with industry standards and legislative requirements does not, of itself, always establish that all reasonable care was taken, generally following industry standards in a closely regulated industry can be evidence of due diligence. Further, maintaining good safety records and providing proper training to workers can significantly enhance a company’s ability to meet the due diligence defence to overcome charges under the occupational health and safety legislation.