Case In Point
Alberta Court of Appeal Grants Leave to Appeal in Case Regarding Employer’s Health and Safety Obligations
Date: December 27, 2012
Clearing the path for a future decision which is likely to provide further clarity on an employer’s health and safety obligations, the Alberta Court of Appeal has granted an employer’s application for leave to appeal in R. v. XI Technologies, in which it was found liable under the Alberta Occupational Health and Safety Act (“OHSA”) for the death of an employee at an employer-hosted event. The death occurred when a calf-roping machine the employer had rented from a third party malfunctioned and fatally struck the employee, who was assisting in its operation.
After an investigation, charges were laid against the employer for failing “to ensure, as far as reasonably practicable to do so, the health and safety” of the employee, and failing “to ensure that all equipment used at a work site would safely perform the function for which it was intended or designed,” contrary to the applicable OHSA regulation.
The employer was acquitted at trial but that decision was overturned by the Queen’s Bench which found, among other things, that “it was patently obvious that the operating procedures adopted by the employer were not adequate to address the risk, so that the machine ought not to have been put in use.”
Leave to appeal to the Court of Appeal was granted as the Court was satisfied that the matter raised an issue of law. It found that “the extent to which an employer may rely upon operating procedures to mitigate identified risk” was a matter of general public importance. The Court further noted that the appeal may assist in determining where the line may be drawn in relation to the risk versus hazard analysis.
Employers are constantly struggling to determine how far they have to go with respect to their health and safety obligations. The decision in this appeal is likely to further clarify the law regarding the degree of hazard analysis and identification that must be taken by employers and the corresponding level of precautions or preventative steps that must be implemented. Hicks Morley is following the case and will release a further update when the appeal decision is published.