With the holiday season approaching employers should keep in mind a recent case from the Provincial Court of Alberta which extends the reach of OHS legislation into an area some may find surprising. In R. v. XI Technologies Inc. the court found that a “client appreciation party” hosted by the defendant employer was a “work site” under the Alberta Occupational Health and Safety Act. In what may be a first in OHS law, the court used a “business purpose test” to arrive at this conclusion. The court concluded the venue was a “work site” because the deceased worker was “carrying out a task involving a business purpose for his employer”. While the defendant was found not guilty after trial since due diligence was exercised, the next employer might not be as fortunate. Accordingly, the case has implications for employers hosting company parties and marketing events.
The facts of the case are somewhat unique, not to mention tragic. A young man was killed at a “client appreciation party” hosted by his employer during the Calgary Stampede. He was assisting with the operation of a mechanical calf-roping ride when he was struck in the head by a metal lever. He was knocked unconscious and died in hospital a few days later.
The calf-roping ride simulated the experience of roping a calf from horseback. The ride consisted of a saddle located on a metal frame. A fibreglass horse’s head was attached to make it look like a horse. The calf consisted of a fibreglass calf’s head attached to a smaller metal frame located on wheels. The calf was designed to be positioned under the horse and was propelled forward by a large spring located at the rear of the horse. The rider would trigger the calf by spurring the metal framed horse. Once triggered the calf was designed to roll forward away from the rider. The rider was then expected to lasso the calf with a rope. By all accounts, most who tried the ride enjoyed themselves, although one witness at the trial described the ride as “dull”.
As mentioned, the force used to propel the calf forward came from a large spring located at the rear of the horse. This large spring was compressed with a long metal lever also located at the rear of the horse. When fully compressed, the spring was locked into position until the rider triggered the release of the calf. The young man was operating this lever when the accident happened. He had compressed the spring and was leaning forward to disengage the lever mechanism from the calf when the rider triggered the calf. The force of the spring was transferred to the lever which was still hooked onto the calf so when the calf moved forwards so did the long metal lever. The metal lever was designed to automatically disengage from the calf but unfortunately it was not working properly on the day of the accident. It was delivered defective to the venue on the morning of the accident. The trial judge found that the accident would not have happened if the calf-roping ride had been functioning properly.
As a result of the accident, the defendant employer was charged with two OHS offences: (1) failing to ensure the health and safety of a worker as far as reasonably practicable, and (2) failing to ensure all equipment used at a work site would safely perform the function for which it was intended or designed.1
The defendant employer advanced two main defences at trial: (1) the young man was not engaged in an “occupation” at the time of the accident as defined under OHS legislation (and therefore the party was not a “work site”); and (2) the defendant employer exercised due diligence in the circumstances. The first defence failed but the second defence was successful. In other words, the trial judge found the client appreciation party was a work site but accepted that the defendant employer had exercised due diligence in the circumstances.
Some of the circumstances of this case suggest the client appreciation party was not a “work site” as normally understood. For example, employees were expected to attend the party but attendance was not mandatory and employees were free to remain at the office if they wanted to work. Alcohol was served to both guests and employees. Employees could, and did, use the calf-roping ride. Those assisting with the operation of the calf-roping ride were not “instructed” to operate the ride but were asked to “help out”. Some employees did not consider themselves to be working at the time of the party. The young man who was killed was a summer student employed as a “software developer”. His job description did not involve the operation of a calf-roping ride or any equipment whatsoever. The party was held at a venue away from the normal place of employment, in this case the Hotel Arts. The main individual in charge of the calf-roping ride was a contract worker not employed directly by the defendant. He had taken the afternoon off to attend the party and so was not getting paid at the time of the accident.
Despite these, and other factors, the trial judge had little difficulty in finding the party was a “work site” and the calf-roping ride was a piece of “equipment” as defined by OHS legislation. In reaching this conclusion the trial judge applied a “business purpose test” as reflected in the following passage at paragraph 19:
As the deceased was operating the calf roping machine throughout the afternoon, he was assisting his employer to carry out a business purpose primarily aimed at entertaining the corporation’s customers, no doubt to maintain business relationships of importance to the ongoing business of the company. As such he was engaged in an occupation. The machine itself was a piece of equipment in that it was something used at the work site for a business purpose. It was brought onto the site by the Defendant’s management and operated by the Defendant’s staff, including the deceased. The deceased operated the machine as part of the marketing function of the Defendant company. [Emphasis added].
It remains to be seen just how far this “business purpose test” will be applied and whether other courts will adopt the concept. However, at a minimum, the ruling should cause employers to revisit certain assumptions made with respect to social and marketing events they host. They should also consider whether sufficient steps have been taken to ensure the safety of attendees including employees. This decision may also have an impact on social and commercial host liability since a breach of OHS legislation may also strengthen a civil suit for social and commercial host liability arising from the event. 2
The Crown has appealed the decision of the trial judge concerning due diligence. The Defendant will likely cross-appeal on the issue of whether the event was a “work site”. We will keep you updated on the results of the appeal.
