The Alberta Court of Appeal recently released its decision in R v XI Technologies Inc., 2013 ABCA 282 and held that the employer had not met its obligations under Alberta’s occupational health and safety laws when it failed to identify and eliminate the safety risk to its employees in the operation of a faulty calf-roping machine at a client appreciation event.
A fatal accident took place during a western-themed client appreciation event hosted by the employer when one of its employees (N.S.) was struck in the head by a lever attached to a calf-roping machine. The calf-roping machine was rented by the company as part of the day’s entertainment. However, the supplier had delivered the machine late and without an operator or appropriate instructions. The employees were left with the task of figuring out how the ride was to be operated and they soon realized that the machine was not functioning properly. The hinge hook which released the “calf” for party-goers to “lasso” failed to automatically detach. As a result, the employees determined that the hinge hook would have to be released manually. N.S. went to unlatch the hinge hook to release the calf when the calf prematurely launched and caused a steel level to strike the employee in the head. This injury ultimately led to N.S.’s death.
The employer was charged with two counts under the Occupational Health and Safety Act, RSA 2000, c. 0-2, for failing to ensure (1) the health and safety of its employees and (2) that all equipment used at the worksite would safely perform the function for which it was intended or designed.
Following trial, the employer was acquitted on both counts. Of note, the supplier of the calf-roping machine was also charged with violating the OHS Act, however, the charge was quashed and a new prosecution could not be commenced due to the expiry of the statutory limitation period.
The Crown appealed the trial judge’s not guilty verdict to a summary conviction appeal judge, who allowed the appeal and entered convictions on both counts.
In response, the employer successfully applied to the Alberta Court of Appeal for leave to appeal the summary conviction judge’s reversal of the verdicts.
The issues before the Albert Court of Appeal were whether the summary conviction appeal judged erred in finding that the trial judge’s verdict was unreasonable based on a proper view of the facts and whether he misapplied the foreseeability test.
The Alberta Court of Appeal’s Decision
As to the question of unreasonable verdict, the Alberta Court of Appeal concluded the employer had not been duly diligent. It upheld the summary conviction appeal judge’s ruling that the risk of harm was evident in that the calf-roping machine had been malfunctioning throughout the day, there were visible marks on the machine to indicate that the lever would be propelled with considerable force and that the malfunctioning of the ride created additional hazards, such as requiring the employee to manually reach into the machine which put the employee’s head in close proximity to the lever.
With respect to foreseeability, the panel held that it was apparent to a reasonable person that there was danger in having to manually reach into the machine to remove the hinge hook. The employer failed, however, to identify the hazard and failed to take the necessary corrective action to eliminate it. As such, the employer had not made out a due diligence defence. The verdict to acquit was therefore unreasonable.
Under Alberta OHS laws, employers are required to assess the workplace to identify hazards and then, once identified, either take steps to eliminate the hazard or if not possible due to legitimate business needs, take steps to minimize and reduce those hazards. The Alberta Court of Appeal held that the employer failed to both identify the hazard and take the necessary corrective action to eliminate it. As the calf-roping machine was not in any way necessary to the employer’s business, this meant the hazard was to be eliminated by not using the calf-roping machine at the party at all. In fact, the Alberta Court of Appeal admonished the employer for even considering to use a machine that no one knew how to operate, without its own operator or a set of instructions and commented that this spoke “volumes as to the lack of its due diligence in this matter”.