An employer’s post-accident efforts to fix a safety issue
were relevant to the issue of whether it had violated the
Occupational Health and Safety Act at the time of the
accident, an Alberta judge has held.
An employee died after sustaining a blunt force blow to his head
while working as a “floorhand” on the floor of a
drilling rig. The company was charged with two offences under the
Alberta Occupational Health and Safety Act: failing to
ensure the safety of the worker, and failing to eliminate an
Over the company’s objections,
the judge permitted the prosecutor to call evidence about an
interlock/warning device that the company had designed and
installed after the accident that would prevent, or at least reduce
the risk of, similar accidents. The judge stated:
“The Defence also argued
that public policy favoured not admitting such evidence. In my
view, at least for a strict liability regulatory offence the public
policy arguments favour admission. The whole tone of the Act is to
encourage proactive safe practices designed to prevent rather than
react. This requires employers to provide wide efforts at
The court rejected the company’s
argument that post-accident evidence should not be admitted because
it would discourage “innovation and repair” –
that is, discourage companies from fixing safety hazards after
accidents for fear that the prosecutor could argue that that fix
should have been implemented before the accident.
Interestingly, the court also stated,
“In not having heard of, let alone used this safety interlock
the Defendant may have fallen victim to their own size and
expertise in assuming that they defined industry standards . . . It
is nothing more than applying a small bit of common-sense
engineering to a known problem.” The court noted that there
were “other even simpler technical solutions which would have
helped avoid this situation.” The company had led no credible
evidence that the engineering solution was an “unproven
innovation” or an “incomplete engineering
solution” that they could not reasonably have identified
before the accident.
The court considered the evidence
about the post-accident fix to be relevant, admissible and
important. The court found the company guilty on both charges.
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
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. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Ten days following the election, join us for a discussion with Gary Doer, former Canadian Ambassador to the US, and Gordon Giffin, US Ambassador to Canada under Bill Clinton, to discuss how the new President and Congressional makeup will shape US-Canada relations for years to come.
On November 8, 2016, the United States will go to the polls to elect their 45th president. Whether it is Hillary Clinton or Donald Trump, this decision will profoundly shape American policy for the next four to eight years. As our largest trading partner and neighbour to the south, the next US administration will influence a broad range of policy issues that directly impact Canada. These include the future of NAFTA and the TPP, the Arctic and geo-politics, the renewal of the Softwood Lumber Agreement, and the energy sector.
On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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).