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 identified hazard.
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 compliance.”
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.
R. v. Precision Drilling Canada Limited, 2015 ABPC 115 (CanLII)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
About Dentons
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 solutions.
Learn more at www.dentons.com
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.