Canada: The Perils Of Calf-Roping

The Alberta Court of Appeal recently upheld a decision to convict a Calgary company under Alberta's Occupational Health and Safety Act (the Act). The convictions resulted from a workplace fatality that occurred at a customer appreciation party hosted by the employer.


Like many other Calgary based companies, XI Technologies Inc. (the Company) hosts an annual customer appreciation event to coincide with the Calgary Stampede. In keeping with the western theme, the Company rented a calf roping machine (the Machine) to entertain party goers. The Machine was provided to the Company without an operator, or operating instructions. Instead, the Company was left to figure out how to operate the Machine on its own. Three employees of the Company were responsible for operating the Machine for customers in attendance at the party.  After inspecting and testing the Machine, it became apparent to the employees that it was not functioning properly, and that the force of the truck spring used to propel the mechanical calf could present a danger to operators. Despite the apparent deficiencies and the hazards associated with the Machines operation, the employees devised an alternative operating procedure that they thought would allow the Machine to operate safely. The revised operating procedure required an operator to reach into the Machine to manually release a "hinge hook" that allowed the spring-loaded mechanical calf to exit the Machine.  

Unfortunately, Mr. Shair, a software developer employed by the Company, was fatally injured after being struck by a steel lever while assisting with the operation of the Machine. The Company was charged with two counts under the Act, which alleged that it failed to ensure the health and safety of its employees, and that all equipment used at a work site would safely perform the function for which it was intended or designed.  The trial judge acquitted the Company of both charges and held that the Company did everything that could be reasonably done to avoid foreseeable risks and that the cause of Mr. Shair's death was only obvious with the benefit of hindsight. The Crown successfully appealed on the basis that the trial judge's verdict was inconsistent with the evidence. The Company subsequently appealed the summary conviction appeal to the Alberta Court of Appeal.

Prosecutions under the Act

Regulatory offences under the Act are "strict liability offences", meaning that, the prosecution only has to establish that an offence was committed, without any requirement to establish that the accused had intent to commit the offence. As a general rule, an employer can escape liability from a regulatory offence if it can establish that it took all reasonable steps in the circumstances to prevent the offence from occurring. This is commonly known as the "due diligence defence".

Trial Decision

After a thorough review of the evidence, the trial judge determined that while the employees and Mr. Shair were aware of the hazards created by the Machine, they did not fully appreciated the significance of the risk or inherent dangers that these hazards presented to the operator. Furthermore, the trial judge concluded that the significant risk posed to the operators by reaching into the Machine to manually release the hinge hook was very obvious with the benefit of hindsight, but that the risk was not obvious to a reasonable person at the time that the Machine was used by the operator.  Accordingly, the trial judge ruled that the accident was not foreseeable and that the Company took all reasonable steps to avoid the accident.

Summary Conviction Appeal Decision

The summary conviction appeal judge disagreed with the trial judge and concluded that the Company was liable due to its decision to continue to operate the Machine with knowledge of the dangers associated with its operation. Specifically:

In the circumstances of this case, it is not the fact that the [Machine] was improperly functioning which attracts liability. Rather, it is the decision of the [Company] to continue its operation once the potential danger associated with the method of loading the calf was known. ...  In this instance, once the hazard was detected, a reasonable employer would have simply placed the Machine off to the side and hung an "out of order" sign on it. It would not have expected its employees to determine the "most safe" (or least dangerous) method of operation. It would not have permitted untrained employees to reach into a piece of equipment. Rather, it would have discontinued all use of the Machine. The judge's finding that XI Tech did all that was reasonably practical in the circumstances to protect the health and safety of its employees is an unreasonable one.

The summary conviction appeal judge also concluded that a reasonable employer, unfamiliar with a piece of machinery, would have requested operating instructions or a demonstration of the Machine's operation:

Requesting instructions or a demonstration is a step that a reasonable employer, unfamiliar with a piece of machinery which it intended to operate immediately, would have done in the circumstances. It is a relatively simple step which would have helped ensure that employee operators were loading the Machine in the correct manner. The need to receive operating instructions for a piece of machinery that the Company had absolutely no familiarity with is not a requirement that only becomes appreciated with the benefit of hindsight. A reasonable employer would have ensured operational instructions were received before handing an unfamiliar machine over to its employees to operate. Again, a simple assumption of safety cannot satisfy the due diligence requirement.

Alberta Court of Appeal Decision

The Alberta Court of Appeal agreed with the summary conviction appeal judge and dismissed the Company's appeal. The Court was of the view that the summary conviction appeal judge properly found that: (i) the trial judge's decision that the risk was only obvious with the benefit of hindsight was incompatible with the balance of evidence accepted by the trial judge, and (ii) that the Company did not do all that was reasonably practicable in the circumstances to avoid the reasonably foreseeable risks.  As such, the Court determined that the Company was unable to successfully establish a due diligence defence.

Our View

This case serves as a strong reminder that Alberta employers will be held to a high standard when it comes to ensuring the safety of its employees.  It should come as no surprise that employers will be liable under the Act for injuries sustained by employees if they allow them to operate unfamiliar equipment without prior training; particularly when the employer has advance knowledge that the operation of the equipment could expose the employees to harm.  This holds true regardless of whether the equipment is being operated at a social event or in the regular course of employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions