Alberta v. XI Technologies Inc., 2012 ABQB 549

Court of Queen ’ s Bench of Alberta Citation: Alberta v. XI Technologies Inc., 2012 ABQB 549 Date: 20120924 Docket: 090822206S1 Registry: Calgary Between: Her Majesty the Queen Appellant - and - XI Technologies Inc. Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W.P.

Sullivan _______________________________________________________ Introduction and Outline of Facts : [ 1 ] This is an appeal from a finding that the respondent employer, XI Technologies Inc. (“XI Tech”) was not guilty of two separate Counts under both the Occupational Health and Safety Act , RSA 2000, c O-2 (“OHSA”) and the Occupational Health and Safety Regulation , Alta Reg 62/2003.

For the reasons given below, the appeal is allowed and a conviction is entered on both Counts. [ 2 ] The facts are fully set out in the reasons of the learned trial judge ( 2011 ABPC 313 ), and I will repeat only the salient facts necessary for the determination of this appeal.

[ 3 ] The charges facing XI Tech stem from a fatality that occurred on the 12 th of July, 2007, when Nathaniel Wai-Kit Shair was struck in the head by a steel lever as he was assisting at a calf roping machine (“CRM”) set up by his employer for the entertainment of clients during a Calgary Stampede party. [ 4 ] The customer appreciation party was part of a client promotion event held annually by XI Tech for the purpose of promoting the company. To assist in the planning of the event, the respondent hired Carter McRae and TeeBreeze Entertainment (“TeeBreeze”) as professional event planners.

TeeBreeze was to provide activities for XI Tech’s customers and obtained the CRM from a supplier, Radar’s Rentals. [ 5 ] The trial judge found that there was clearly a business purpose to the event and it was Mr. Shair’s responsibility for the afternoon to operate the CRM for the entertainment pleasure of the respondent’s customers. As such, the party and the promotion was held for business purposes. The learned trial judge found that Mr. Shair’s participation and duties at the event were directed by other company personnel including a Mr. Shawn Fenemore who directly supervised the operation of the CRM. [ 6 ] Mr.

Shair was a student just completing his education at the University of Calgary and was working as a summer student for the respondent at the time of his death. The activity that Mr. Shair was undertaking on the afternoon of his death was not within his job description. He was a software developer/data analyst. [ 7 ] The CRM was intended to provide entertainment to clients by allowing riders sit atop of a mock horse containing a mechanical calf which had been spring loaded. Riders then release the calf by applying pressure on the release plate located on the right side of the horse.

Upon release, the calf is ejected from the horse and riders attempt to lasso it. [ 8 ] The CRM was not working properly on the day in question and as such, the operators were required to manually load the calf by reaching into the machine. Mr. Shair was reaching into the CRM to disengage the hook from the back of the calf when he was struck on the back of the head by the lever as the calf was launched by a rider. He died as a result of his injuries. [ 9 ] Following the fatality, XI Tech was charged with failing to ensure Mr.

Shair’s health and safety as far as reasonably practicable, and with failing to ensure that the CRM would safely perform the function for which it was intended or designed. The trial judge found that XI Tech had established a defence of due diligence on both Counts and acquitted the respondent. Grounds of Appeal [ 10 ] The essence of this appeal concerns the law of the due diligence defence upon proof of the actus reus in strict liability offences arising under the OHSA.

Specifically, the appellant has alleged the following grounds of appeal: 1) the learned trial judge erred in law in applying the wrong test for due diligence; 2) the learned trial judge erred in law by applying the wrong test for foreseeability; and 3) the learned trial judge erred in law by making palpably unreasonable findings of fact unsupported by the evidence and by using those findings to support her conclusion that the Respondent had exercised due diligence in ensuring the health and safety of its worker at the site and in so doing reached an unreasonable verdict. [ 11 ] The Respondent has not challenged the trial judge’s finding that the actus reus of the offence had been made out on the facts.

Standard of Review [12] The parties were in agreement as to the applicable standards of review for each of the alleged errors. Instead, the disputecentered on the characterization of the issues and the proper test to be applied. [13] Our Supreme Court in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, summarized the applicable standards forappellate review.

In Housen, the majority confirmed that questions of law are reviewable on a correctness standard and on pure questionsof law, an appellate court is free to replace the opinion of the trial judge with its own: para 8. [14] The standard of review for questions of fact is that such findings are not to be reversed unless it can be established that thetrial judge made a "palpable and overriding error": para 10. [15] When a matter involves the application of a legal standard to a set of facts, it is a question of mixed fact and law.

As such,where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrongconclusion, then this amounts to an error of mixed law and fact: Housen para 28.

While questions of mixed fact and law lie along aspectrum, those questions from which no legal issue can be extricated are subject to a more stringent standard and should not beoverturned absent palpable and overriding error: para 36. [16] This appeal is taken in accordance with the procedures and provisions set out in the Criminal Code, as per ss 2 and 3 of theProvincial Offences Procedure Act, RSA 2000, c P-34. Section 822(1) of the Criminal Code provides for the application of ss 683 to 689of the Code. Accordingly, s 686(1) is applicable, which provides that the court may allow an appeal where: (

i) the verdict should be setaside on the ground that it is unreasonable or cannot be supported by the evidence; (ii) there has been a wrong decision on a question oflaw; or (iii) there has been a miscarriage of justice. [17] As aptly described by Hillier J. in R. v. Lonkar Well Testing Limited, 2009 ABQB 345, 473 AR 1, at para 16: The test for determining if a verdict is unreasonable has been variously described as whether on the facts that were before the trier of facta jury properly instructed and acting reasonably could convict (R. v.

S.(P.L.), (SCC), [1991] 1 S.C.R. 909 at para. 7), orwhether the reasoning of the trial judge was illogical or speculative or inconsistent with the main body of evidence (R. v. Francois, (SCC), [1994] 2 S.C.R. 827 at para 23). In conducting a review under s. 686(1)(a)(

i) of the Criminal Code to determinewhether a verdict is unreasonable, the Court must carefully consider all of the evidence that was before the trier of fact and to someextent re-weigh the effect of the evidence: R. v. Yebes, (SCC), [1987] 2 S.C.R. 168 at para. 25; R. v. Burke, (SCC), [1996] 1 S.C.R. 474 at para. 4. [18] In R. v. Beaudry, 2007 SCC 5, [2007] 1 SCR 190 the test was described as follows, at para 58: ...The test to be applied is "whether the verdict is one that a properly instructed jury acting judicially, could reasonably have rendered".

Inevery case, it is the conclusion that is reviewed, not the process followed to reach it. I agree that, as Arbour J. explained in the passagequoted above, errors or a faulty thought process in a judge's reasons can sometimes explain an unreasonable conclusion reached by thejudge. But a verdict is not necessarily unreasonable because the judge has made errors in his or her analysis. The review must go furtherthan that.

In every case, the court must determine whether the verdict is unreasonable and, to do so, it must consider all the evidence... [19] The test for unreasonable verdict and the principle of appellate deference makes it clear that an appellate court is not at libertyto substitute its views or opinion for that of the trial judge, simply because the appellate court would have reached a different decision.With the above in mind, I address each of the appellant’s grounds for appeal. Analysis

[ 20 ] The appellant raises three grounds of appeal, each of which is linked to the defence of due diligence.

As such, I will address them together in the following fashion; first I will determine whether the trial judge properly articulated the test for due diligence and foreseeability and second, I will determine if the trial judge properly applied these tests to the facts in reaching her verdict. [ 21 ] The appellant alleges two main errors in the manner in which the trial judge formulated the test for due diligence; first, that the trial judge misstated the test by combining Count 1 and Count 2, and second, that the trial judge applied a subjective test. [ 22 ] The respondent submits that read as a whole, the judgment reveals that the trial judge correctly described the test for due diligence and argues that isolated paragraphs should not be extricated from the judgment in an attempt to uncover an error.

Combination of Count 1 and Count 2 [ 23 ] In making its argument, the appellant submits that the trial judge misapprehended the test for due diligence at para 22 of the judgment where she states: It is common ground that the Defendant must establish on a balance of probabilities that it did all that it reasonably could to prevent the accident from happening. [ 24 ] The appellant argues that this was not “common ground” and that the duty with respect to Court 1 is distinct from the duty with respect to Count 2 and that assessing due diligence requires consideration of which steps were taken in order to achieve these distinct objectives.

As noted by the trial judge, the Counts read that XI Tech: Count 1: On or about the 12 th day of July 2007, at or near Calgary, Alberta, being an employer, did fail to ensure, as far as it was reasonably practicable to do so, the health and safety of Nathaniel Wai-Kit Shair, a worker engaged in the work of that employer, contrary to section 2(1) (a)(

i) of the Occupational Health and Safety Act , RSA 2000, c. O-2, as amended. Count 2: On or about the 12 th day of July 2007, at or near Calgary, Alberta, being an employer, did fail to ensure that all equipment used at a work site would safely perform the function for which it was intended or designed contrary to Section 12 (1)(

b) of Occupational Health and Safety Regulation pursuant to the Occupational Health and Safety Act , RSA 2000, c. O-2, as amended. [ 25 ] I reproduce the relevant sections of the OHSA and the Regulations below, respectively: Obligations of employers, workers, etc. 2(1) Every employer shall ensure, as far as it is reasonably practicable for the employer to do so, (

a) the health and safety of (

i) workers engaged in the work of that employer, [...] Equipment 12(1) An employer must ensure that all equipment used at a work site [...] (

b) will safely perform the function for which it is intended or was designed, [...]

[ 26 ] The appellant thus argues that upon proving the actus reus , the burden shifts to the respondent to prove both that steps were taken to ensure the health and safety of Mr. Shair and that steps were taken to ensure the equipment would safely perform its function. The respondent submits that a separate analysis was not required. [ 27 ] Certainly, it is open to the courts to analyze each Count separately in determining whether the offence has been proven and whether an employer has discharged its onus of showing due diligence; see, for example R. v.

Bruin's Plumbing & Heating Ltd , 2000 ABPC 118 , 272 AR 82; R. v. Lonkar Well Testing Ltd . I note that in R. v. Savanna Drilling Corp , 2011 ABPC 75 , in an application to compel the provision of particulars for various charges under the OHSA, the Court described the Counts as independent, at paras 3-4: As is frequently the case in these types of prosecutions, Count 1 enumerates an alleged offence under the general charging s.2(1) (a)(

i) of the Occupational Health and Safety Act R.S.A. 2000 ch.O-2. The essence of the charge is argued by the Crown to consist of the "actus reus", being the failure of the Applicant "to ensure as far as it was reasonably practicable to do so, the health and safety of [the employee]". [...]. In relation to the same worker and the same incident, Counts 2 and 3 allege specific failures to comply with certain regulations pursuant to the Occupational Health and Safety Act .

It is not agreed by the Crown that the specific failures articulated in Counts 2 and 3 would collectively constitute the failure as set out in Count 1. Accordingly, in this application, Count 1 must be viewed wholly independently, and the application for particulars relates only to that count. [ 28 ] The appellant was unable to provide any authority showing that a failure to conduct a due diligence and foreseeability analysis under each separate Count constitutes an error; nor was this Court able to locate any.

Indeed, there are cases in which the Court determined all charges together, as stemming from the same incident: see for example R. v. Fountain Tire (Olds) Ltd , 2011 ABPC 236 ; or see R. v. Kal Tire Ltd. , 2008 ABQB 551 , where the employer was charged under s 2(1)(a)(

i) of the OHSA (Count 1) as well as s 15 of the Regulations (Count 2).

On appeal the Court noted that the lower Court concluded that the individual Counts essentially charged the same delict and that as such, the lower Court had entered a conviction on Count 2 and a conditional stay on Count 1. [ 29 ] I agree with the respondent that the trial judge’s reasons show that she was cognizant of the fact that there were two separate delicts to address, as evidenced in the following paragraphs of her reasons [emphasis added]: 223 The Defendant company's actions in this case were not perfect, but I have concluded that a reasonable person, in all of the unique circumstances of this case, could not reasonably have, on balance, done more than the Defendant company did to avoid the accident.

The Defendant company did all that it could do to ensure, as far as it was reasonably practicable to do so, that Mr. Shair was safe and that the equipment he was provided with would safely perform its function . [...] 225 Accordingly, it is my ruling that the accident in this case was not foreseeable and the Defendant company has established, on a balance of probabilities, that it took all reasonable steps to avoid the accident. The Defendant company did all that it could do to ensure, as far as it was reasonably practicable to do so, that Mr.

Shair was safe and that the equipment he was provided with would safely perform its function . 226 The defence of due diligence has been made out in this case and accordingly since this defence is available to both charges before the Court, I find the accused not guilty with respect to both Counts One and Two in the Information. [ 30 ] The trial judge’s decision does not provide for a separate analysis for each Count, although her reasons show that she was clearly aware of the separate existence of, and distinction between, both Counts.

The appellant has not demonstrated that the trial judge committed any error in this regard.

Test for Due Diligence [31] The appellant has also alleged that the trial judge erred in citing and applying the wrong test for due diligence. While theappellant agrees that due diligence is properly characterized by asking what is reasonable for an employer in the circumstances of therespondent, it submits that the trial judge erred in applying a subjective test to the respondent.

The appellant submits that the trial judgeerred in subjectifying the test by comparing XI Tech against ‘industrial enterprises’. [32] The first step in this analysis is to determine whether the trial judge properly defined the test for due diligence. [33] The trial judge defines the ‘defence of due diligence’ at para 199 of her reasons. In it, she properly refers to our SupremeCourt's instructions in R. v.

Sault Ste Marie, (SCC), [1978] 2 SCR 1299 [emphasis added]: [199] The defence of due diligence requires the Defendant to establish on a balance of probabilities that it took all reasonable steps toavoid the accident, or that there was an honest mistake on its part which would render the act or omission innocent. In R. v. Sault Ste.Marie, (SCC), [1978] 2 S.C.R. 1299 (S.C.C.) at p. 1326, the Supreme Court stated the following: "...[It is] open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what areasonable man would have done in the circumstances.

The defence will be available if the accused reasonably believed in a mistaken setof facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event." [34] In analysing the authorities on the test for due diligence, the trial judge cited as follows, at para 201: The question of due diligence requires that an objective standard be applied in order to assess the conduct of the accused against that of areasonable person in similar circumstances. (Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420, 2006 SCC 12 at paragraph 15.

I have appliedthe principles enunciated in the decision of R. v. Gonder (1981), (YK TC), 62 C.C.C. (2d) 326 (Yukon TerritorialCourt) which were followed with approval in the decision R. v. 6462 Yukon Ltd., [1994] Y.J. No. 169. That case discussed the concept ofreasonable care and stated that it implies a scale of caring. The reasonableness of care is inextricably related to the special circumstancesof each case and the standard of care is variable depending upon the special circumstances of each factual setting.

It must be raised orlowered in accordance with the unique circumstances of each case. [35] I do not read the trial judge as articulating that the test for due diligence is subjective. Rather, she notes that an objectivestandard is to be applied, but that such application should be contextual to the position of this employer vis-a-vis what a reasonableperson (employer) would do in similar circumstances. This approach was approved by our Court of Appeal in R. v. Bruin's Plumbing &Heating Ltd, 2003 ABCA 300, 339 A.R. 191, at para 7 as follows: We would express the due diligence test this way.

What should an employer in the position of this employer do to ensure as far asreasonably practicable the health and safety of a worker engaged in [this particular industrial practice]. [36] At para 67 of R. v.

Sunshine Village Corp, 2010 ABQB 493, 498 AR 248, Bensler J. referred to the unanimous judgment ofthe Supreme Court in Lévis (City) v Tétreault, 2006 SCC 12, [2006] 1 SCR 240, as instructive in explaining the nature of a strict liabilityoffence and the associated applicable standard [emphasis added]: Faced with the difficulties and injustices caused by this dichotomy between mens rea offences and absolute liability offences, this Courtin Sault Ste. Marie recognized the need for and existence of an intermediate category of strict liability offences.

Some commentators atthat time suggested that such offences be identified with negligence offences. Accused persons would be allowed to exculpate themselvesby proving affirmatively that they were not negligent, although the prosecution would be under no obligation to prove mens rea or a lackof due diligence (Sault Ste. Marie, at pp. 1313 and 1325). Under the approach adopted by the Court, the accused in fact has both theopportunity to prove due diligence and the burden of doing so.

An objective standard is applied under which the conduct of the accusedis assessed against that of a reasonable person in similar circumstances.

[ 37 ] Recently, in R. v. Syncrude Canada Ltd , 2010 ABPC 229 , 489 AR 117, the use of the objective standard was again confirmed, at para 99 [emphasis added]: To meet the onus, Syncrude is not required to show that it took all possible or imaginable steps to avoid liability. It was not required to achieve a standard of perfection or show superhuman efforts. It is the existence of a "proper system" and "reasonable steps to ensure the effective operation of the system" that must be proved.

The conduct of the accused is assessed against that of a reasonable person in similar circumstances [...] [ 38 ] In Lonkar , the Court held that “reasonable care will vary with the circumstances and specificity of the charges being prosecuted...”: para 36. Again, this suggests an assessment of the steps taken by an employer in relation to the work being done in the circumstances. [ 39 ] A review of the trial judge’s reasons shows that she did not err in articulating the test for due diligence.

She confirmed that due diligence must be determined by objectively examining the conduct of the employer against that of a reasonable employer in the circumstances. I do not think that the trial judge erred in holding that “...the company in this case ought to be measured by a standard which takes into account the unique circumstances of this case”: para 180, or that “the nature of the accused in this case, being a small technology company, contrasts with the larger industrial enterprises typically before the courts as a result of industrial accidents”: para 200.

Rather, her comments in this regard reflect an appreciation that the objective standard is to be applied against a reasonable employer in the circumstances. Test for foreseeability [ 40 ] The appellant also argues that the trial judge erred in applying the wrong test for foreseeability. [ 41 ] The trial judge correctly identified that in applying the legal test for due diligence to the facts, a foreseeability analysis was required.

She held, at para 166 that “the question of whether the risk these features of the machine created was foreseeable in the circumstances of this case, however, form part of the Court’s deliberations on the question of due diligence.” I note that her articulation is similar to that of this Court’s in Lonkar , where it was held that part of the assessment as to whether an employer met the test of due diligence requires a “careful consideration of foreseeability”: para 39.

In her reasons the trial judge correctly noted that foreseeability should not be assessed based on hindsight (para 214). [ 42 ] While the trial judge did not engage in a protracted written analysis of the law of foreseeability, it is clear from her reasons that she relied in part upon the analysis in Lonkar , where the Court engaged in a more fulsome discussion of this principle.

At para 41, Hillier J. examined the role of the foreseeability analysis within the context of occupational health and safety objectives: The Court in Rio Algom at para. 25 held that the test in the occupational health and safety context is not whether the defendant in fact foresaw the accident but whether a reasonable man would have foreseen a potential source of danger.

This approach is in keeping with the high onus placed on employers by legislation to reasonably ensure a safe and healthy working environment. [ 43 ] The Court in Lonkar defined the concept of foreseeability as follows, at para 62: For a potential danger to be foreseeable, there must be at least a reasonable prospect or expectation that it will arise . "Foreseeable" is not the equivalent of "imaginable". If s- s. 2(1) (a)(

i) required not only foreseeing and addressing a potential danger so as to ensure the health and safety of workers, but imagining all the bizarre and unforeseeable situations which might create a further danger, then the employer's liability under this provision would be absolute. This approach would essentially render meaningless the phrase "as far as is reasonably practicable". [ 44 ] In Sunshine Village , Bensler J. adopted this analysis, holding at para 90: [emphasis added]

Foreseeability must be addressed when considering the due diligence defence. It is foreseeable risks that are to be considered. [...] Although cases of bizarre and unforeseeable acts are exceedingly rare, in my view the inexplicable scenario that resulted in the death of [the worker] was exactly that - bizarre and unforeseeable similar to the situation described in Lonkar.

For a potential danger to be foreseeable, there must at least be a reasonable prospect or expectation that it will arise . [ 45 ] While the trial judge did not expressly articulate the test for foreseeability, it is clear that she considered recent jurisprudence in which such discussion occurred. The trial judge was clearly cognizant of the fact that the issue of foreseeability formed part of the due diligence analysis.

Application of Law to the Facts [ 46 ] Having found that the trial judge correctly articulated the test for due diligence, including the fact that the analysis required an examination of foreseeability, I must now assess whether this test was properly applied to the facts. [ 47 ] Our Court of Appeal in Bruins recently reiterated the requirement that “one must...distinguish between the test itself and the application of the found facts to that test”: para 6.

The standard of review in such instances was recently restated by this Court in Lonkar , at para 34: ...Assuming the proper test has been applied, the determination as to whether an employer has established a defence on a balance of probabilities is a question of mixed fact and law and therefore subject to a review only for palpable and overriding error. [ 48 ] The trial judge poses the question, at para 58 of her reasons, as “...whether the accident and its causes were foreseeable.” In an attempt to answer this enquiry, the trial judge made a number of factual findings.

Her key findings are summarized below: [ 49 ] XI Tech is a small family owned technology company which rented a mechanical CRM as an activity to entertain clients during its stampede party (para 2); [ 50 ] The stampede party was part of a larger event organized by a professional event planner (Carter McRae) who had been hired by XI Tech. The respondent company also hired TeeBreeze Entertainment as a professional event planner to provide activities for attendees.

Unknown to XI Tech, TeeBreeze ordered the CRM from Radar’s Rentals, whose staff delivered the CRM to the party site (para 3); [ 51 ] XI Tech relied upon both Carter McRae and TeeBreeze, respectively, to adequately organize the events for the afternoon and to provide activities for client entertainment. XI Tech expected that the activities provided by TeeBreeze would be safe (para 200); [ 52 ] The CRM actually delivered to XI Tech on the day of the party was different from what XI Tech had originally ordered.

This distinction was not noted until after the incident (para 215); [ 53 ] The CRM arrived late and XI Tech was not provided with operating instructions. The driver who dropped the machine off went through a brief explanation of how the calf was to be loaded. The instructions provided were “wholly inadequate and incomplete” (para 41). It was left up to the staff (Messrs. Fenemore, Ratani and Shair) to figure out how to operate the CRM. Mr.

Fenemore had experience operating rigs in the oil patch and took charge in determining how to operate the machine (paras 34-42); [ 54 ] Had the operating instructions been given, the respondent would have been alerted to the fact that the CRM was not intended to be operated in a manner which required the operator to reach into the machine to manually release the hinge hook (para 200);

[ 55 ] Mr. Fenemore testified that he noticed a number of dents on the lever and on the back of the horse indicating that the lever coming forward prematurely had happened on a number of occasions (para 51). He also recognized that the machine had a “ hair trigger ” meaning they had to be cautious about the release (para 50). Mr. Fenermore gave evidence that just having one of XI Tech ’ s employees ‘ brush up against the plate ’ was enough to release it; [ 56 ] Mr.

Fenemore recognized that one thing which was clearly ingrained into him from his training on the oil rigs was that a worker ought never to get between two pieces of metal (para 47). He instructed the operators not to do so (para 53); [ 57 ] The CRM ought to have been delivered in a condition whereby the operator would not be required to reach into the machine manually to release the hinge hook from the back of the calf.

Instead, the retract spring was too long, so that when the operator “lifted the handle” he was required, while hanging onto the handle, to reach into the machine to release the hinge hook manually, with his other hand. It was this manoeuver which potentially placed the operator into a dangerous position (para 143); [ 58 ] The respondent was not in a position to control the functioning of the machine, because knowledge of its proper functioning and maintenance was vested in the owner, Radar’s Rentals (para 207); [ 59 ] Mr.

Ratani had sustained a prior injury while loading the calf earlier that day when he was struck on his shoulder by the lever (para 52). Ratani was not reaching into the machine when the incident occurred; rather, he had just cocked the machine when the calf was prematurely released and the lever struck him. This incident was thought to be “minor” and was not reported to XI Tech’s management (para 53); [ 60 ] Following the incident with Mr. Ratani, Mr. Fenemore revised the method in which the employees loaded the calf.

Instead of facing the lever and pushing down on it, they were instructed to stand behind the lever and pull it down to a position where they could cock the machine. This method was safer than those instructed by the owner (para 144); [ 61 ] Mr. Fenemore believed that his method for loading the machine and having the rider release the calf when instructed to “go” would eliminate any hazards (para 200). While Mr.

Fenemore recognized some degree of hazard given the composition and operation of the CRM, he did not appreciate the degree of risk these hazards created (para 48); [ 62 ] It remained necessary, however, for Mr. Shair to reach into the machine manually and disengage the hinge hook from the "eyelet" (tail hook) on the back of the calf before it was safe for the rider to launch the calf by pushing on the release plate. It was as Mr.

Shair was manually reaching into the machine for this purpose that the rider prematurely launched the calf, causing the lever to spring forward and strike him in the head, causing his death (para 44); [ 63 ] The incident happened when a rider (Mr. Doenz ) prematurely released the calf causing the lever to come down before Mr. Shair had cleared the machine. The rider prematurely released the calf prior to Mr. Fenemore removing his hand from in front of Doenz and saying “go” and stepping out of the way. Mr.

Doenz had consumed between 8-9 drinks by the time of the incident (para 107); [ 64 ] The release plate was located in a location where the rider's leg would either be on top of or very close to the plate. This increased the likelihood or possibility of premature launching of the calf and in evidence there were times when this was noticed by Mr. Fenemore (para 158); [ 65 ] It was the malfunctioning retract spring which created the hazard to the worker because it necessitated the worker having to reach into the machine to release the hinge hook.

Had the proper retract spring been attached to the lever, the operator would not have been required to reach into the machine to load the calf (para 169). [ 66 ] In discussing the element of foreseeability as a part of the due diligence analysis the trial judge drew a distinction between foreseeing a ‘hazard’ and a ‘risk’. In so doing, she rejected a key component of the opinion offered by Mr. Ford, an occupational health and safety expert who testified on behalf of the respondent. In commenting on both ‘hazard/risk’ and ‘remoteness’, Mr. Ford opined that

the mechanics of the injury were too remote to be foreseeable. Of note is the following finding, at paras 189-191 [emphasis added]: Mr. Ford's opinion was that the magnitude of the risk was not foreseeable in this case. In his view the risk of a fatality would have been difficult to foresee in this case not only because Mr. Fenemore had put a procedure in place whereby the calf would not be released until he signalled the rider to "Go", but also because the possibility of Mr.

Shair's head being between the lever and the back of the horse at the precise time the rider prematurely launched the calf would have been a remote possibility. Mr. Ford expresses the view that the accidental release of the calf referred to in the Zeus Engineering Report as a hazard is irrelevant in this case, because the calf was in fact released intentionally. In his view the intentional release of the calf, contrary to Mr. Fenemore's instructions, at the precise moment Mr. Shair's head was in front of the lever was a remote possibility which the Defendant company could not have foreseen.

From the totality of the evidence before me, I do not agree with Mr. Ford that the possibility of Mr. Shair's head being between the lever and the back of the horse at the precise time the rider prematurely launched the calf was a remote possibility . First of all, the sensitivity of the release plate in this case is such that the premature release of the calf, whether intentional or otherwise, was a possibility throughout the afternoon. In addition the evidence is such that Mr. Shair would have had to be in close proximity to the hazard presented by the lever as he manually released the hinge hook from the calf.

Photographs and other evidence in this case along with the evidence of Mr. Fenemore are such that Mr. Shair had to reach into the machine to release the hinge hook at the same time that he held the lever itself in his other hand and pulled it slightly forward to release tension on the large compressed spring which would ultimately launch the calf. Hence he held the lever in one hand and reached into the machine with the other. The hinge hook itself is attached to the base of the lever and protrudes as an extension of the lever at a right angle. Mr.

Shair may not have been able to stand away from the lever as he reached into the machine to release the hinge hook. Mr. Fenemore himself had to get "pretty close" to carry out this manoeuvre and it was his evidence he did not see the position of Mr. Shair when he was struck by the lever. Although I disagree with Mr. Ford's rationale on the subject of remoteness, nevertheless his distinction between hazard and risk, and in particular, whether the significant degree of risk the hazards identified by Mr.

Fenemore presented were foreseeable, must be given careful consideration in this case [ 67 ] Notwithstanding her above findings that the possibility of having Mr. Shair’s head between the lever and the horse at the moment of a premature launch was not remote, the trial judge went on to hold, at para 202 that: At no time did the Defendant’s staff appreciate that there was any significant risk involved with the operation of the machine, although the Defendant’s staff did identify a hazard involving the lever and the sensitive release plate. Mr.

Fenemore put procedures in place which he believed would eliminate these hazards. [ 68 ] The trial judge reiterated this finding at para 217: Another set of circumstances which I have carefully considered in determining whether the Defendant company took all reasonable steps to avoid the accident relate to the fact that although Mr.

Fenemore recognized the hazards created by the manual release of the hinge hook coupled with the sensitivity of the release plate (which could result in the premature release of the calf), he did not appreciate the significant risks these factors presented to the operators setting the machine at the back. [ 69 ] The trial judge’s understanding of Mr. Fenemore’s appreciation of the risk involved with the operation of the CRM is reflected at para. 48 of her reasons: Mr. Fenemore believed he had established procedures to operate the machine safely.

While he recognized some degree of hazard, given the metal structure of the horse as earlier mentioned, and the sensitive release mechanism concerning the calf, at no time did he appreciate the degree of risk these hazards created. He did not anticipate anything more than a pinched finger or a bruise could ever happen with respect to operating the machine and that these hazards were eliminated by the procedures he put in place. He never imagined that something as serious as a fatality could take place as a result of operating the calf roping machine.

If he had believed there was any significant hazard, he testified that the XI management would have directed the machine to be taken away immediately. [ 70 ] The trial judge addressed the issue of foreseeability beginning at para 214 of her reasons. In so doing, she highlighted a

number of ‘circumstances’ to be considered in determining whether XI Tech took all reasonable steps to avoid the accident. [ 71 ] Of note is the finding that the respondent’s marketing manager (Ms. Brandt) did not know how to operate the machine. The evidence of both Ms. Brandt and Mr. Stackhouse, the president of XI Tech, is that neither individual had any involvement with the installation, operation, or maintenance of the CRM. Both were aware that alcohol was going to be served at the party. Both Mr. Stackhouse and Ms.

Brandt witnessed the operation of the CRM at some point during the party. [ 72 ] The trial judge found that Ms. Brandt was present when the CRM was dropped off but that a request for instructions was apparently not made upon delivery. Rather, “she simply turned the machine over to Mr. Fenemore and others to determine how it ought to be operated” (para 215).

The trial found that “arguably this action failed to ensure that equipment brought onto the work site was safe before she permitted or indeed expected the Defendant’s employee’s to operate it.” (para 215). [ 73 ] However, despite this finding, the trial judge went on to hold that given the respondent’s expectation that only safe entertainment activities would be provided by the professional party planners upon whom it relied, the respondent was not obligated to ensure it received proper operating instructions (which instructions would have shown that operators were not required to place themselves into the CRM during loading).

The trial judge found that it was simply not foreseeable that an unsafe device would be delivered to the respondent in the circumstances (paras 215-216). [ 74 ] Furthermore, the trial judge found that while the respondent recognized the hazards created by having to release the hinge hook manually, coupled with the sensitive release plate which could result in premature release of the calf, it failed to recognize the “significant risks” this hazard entailed (para 217). In establishing an operating procedure, Mr. Fenemore believed that he had taken reasonable steps to overcome any hazards the CRM presented.

This included a modification to the loading instructions after Mr.

Ratani was struck by the lever (paras 217-222). [ 75 ] In relying on the above factors, the trial judge ultimately found, at para 221 that: With the benefit of hindsight the significant danger the operators faced when they reached in to manually release the hinge hook is very obvious, but I have concluded that at the time the machine was used by the operators in the circumstances of this case this was not obvious to a reasonable person... [ 76 ] With the greatest respect to the learned trial judge, this finding simply cannot be supported by the facts. While the trial judge found that Ms.

Brant, for the employer, arguably failed to ensure that equipment brought onto the work site was safe, she went on to find that because the respondent was expecting the delivery of safe equipment and because the risks associated with manually loading the calf were not reasonably foreseeable, the respondent had met its onus of proving due diligence.

While the trial judge applied the correct legal test of due diligence and foreseeability, her application of this test to the facts constitutes a palpable and overriding error, resulting in an unreasonable verdict. [ 77 ] In so finding, I remain mindful of the rationale behind the introduction of occupational health and safety legislation. The OHSA places a duty on the employer to ensure the health and safety of its workers, as far as reasonably practical. The employer must satisfy that it took reasonable steps to do so on a balance of probabilities.

The concept of “insuring” a worker’s health and safety has been recently discussed by this Court. Notably, in R. v. Rose ’s Well Services (cob Dial Oilfield Services) , 2009 ABQB 1 , 467 AR 1, Graesser J. held at para 107: As well, the passage quoted from Wyssen is not an accurate statement of the responsibility of an employer towards its employees: the employer is not an insurer or guarantor of worker safety. Employers are required only to take reasonable care and do only what is reasonably practical.

Wyssen should not be interpreted in Alberta as limiting or lessening an employer's opportunity to raise a due diligence defence and avoid liability because of the absence of negligence. [ 78 ] This approach was adopted by Hillier J. in Lonkar (para 32) and Bensler J. in Sunshine Village (para 70). [ 79 ] The evidence in the case at bar cannot lead to a finding that XI Tech took reasonable care and did what was reasonably

practical to ensure the health and safety of Mr. Shair. It was unreasonable for the trial judge to find, on the evidence she accepted, thatthe respondent employer met its onus of proving due diligence on a balance of probabilities. The trial judge’s conclusion at para 221 thatthe danger faced by the operator employees when they reached into the CRM was not obvious to a reasonable person cannot besupported by the evidence. [80] Rather, the evidence clearly demonstrates the following: the CRM was delivered to XI Tech at the party premises late andwithout adequate operating instructions or warnings. Ms.

Brant for the respondent both permitted and expected that Mr. Fenemore andother employees would determine how to operate the CRM. Given the lack of operational instructions, the employees were unaware thatthe CRM was to be loaded in a different fashion. However, Mr. Fenemore was able to figure out a method to make the CRM work bypushing the calf under the machine to latch the hook on and then cocking it. The operator would then move out of the way and the riderwould be instructed to “go” and would release the calf.

In establishing a procedure to load the calf it was noted that the lever hadprematurely released on a number of occasions, striking the back of the CRM and leaving visible marks on both the lever and on theback of the horse. The fact that the release plate was also very sensitive was also noted. [81] The evidence also shows that earlier in the afternoon Mr. Ratani was struck on the shoulder by the lever. He had just cockedthe CRM when the calf was prematurely released by the rider.

Following this incident, the method of loading the calf was altered withthe operators instructed to no longer stand in front of the lever. While Mr. Fenemore believed this procedure to be safer, it stillnecessitated Mr. Shair to reach into the machine to disengage the hook from the calf. It was while he was doing so that he was fatallystruck by the lever as the calf was prematurely launched. [82] It is with these findings of fact in mind that I return to the concept of ‘foreseeability’ as recently discussed by this Court.

Asnoted above, in Lonkar Hillier J. held that “for a potential danger to be foreseeable, there must be at least a reasonable prospect orexpectation that it will arise”. Bensler J. adopted this statement verbatim at para 90 in Sunshine Village. In the case at bar, the trial judgeexpressly found that the possibility of Mr. Shair reaching into the machine at the moment of a premature launch was not remote. She alsofound that a premature release of the calf was a possibility throughout the afternoon.

The evidence clearly shows that the potentialdanger of being struck by the lever upon premature release while reaching into the machine was a “reasonable prospect”. [83] I agree with the appellant that the trial judge erred in her assessment of ‘risk’ versus ‘hazard’ in finding that while the hazardof being struck by the lever was known, no one appreciated that there was a risk of serious injury. The appellant argues that the exactinjury did not have to be foreseen and that the test is whether a reasonable man would have foreseen the potential danger.

This was theapproach taken by the Ontario Court of Appeal in R. v. Rio Algom (1988), (ON CA), 66 OR (2d) 674, where it held,at para 25: The trial judge, however, appears to have focussed his attention on the fact that none of the witnesses foresaw "this type of accidenthappening" and that "no one had foreseen the happening of what happened on September 3rd". In my view, in purporting to determinewhether the respondent had taken the care which a reasonable man might have been expected to have taken in the circumstances, heapplied the wrong test.

The test which should have been applied was not whether a reasonable man in the circumstances would haveforeseen the accident happening in the way that it did happen, but rather whether a reasonable man in the circumstances would haveforeseen that an "overswing" of the gate could be dangerous in the circumstances and if so whether the respondent in this case hadproven it was not negligent in failing to check the extent of overswing in order to consider and determine whether it created in any way apotential source of danger to employees and in failing to take corrective action to remove the source of danger [84] As noted above, this approach was adopted by our Court as recently described by Bensler J. in Sunshine Village at para 79[emphasis added]: In R. v.

Rio Algom Ltd. ...the Court held at 682 that the test is not whether the defendant foresaw the accident but whether a reasonableman would have foreseen a potential source of danger.

"This approach is in keeping with the high onus placed on employers bylegislation to ensure a safe and healthy working environment": Lonkar at para. 41 [85] See also Fountain Tire at para 150 and where, quite recently, Alberta’s Provincial Court stated the test as “whether areasonable person would have foreseen a potential source of danger.” I agree with the appellant that the specific type of injury to Mr.Shair did not have to be foreseen. Rather, the question is whether a reasonable person would have foreseen the potential danger ofoperating the CRM in the manner indicated.

[ 86 ] The case at bar is not one in which circumstances of the accident were so bizarre as to be reasonably unforeseeable (see R. v. Brant Corrosion Control Inc , 2008 ONCJ 731 ; Lonkar , para 40; Sunshine Village para 74; R. v. Procrane Inc. (cob Sterling Crane) , 2011 ABPC 28 para 34 ; R. v. Kidco Construction Ltd , 2009 ABPC 195 , 476 AR 152, para 49 ). Rather, Mr. Shair was injured as he reached into a piece of machinery.

This potential source of danger was compounded by the fact that the machinery he was reaching into was known to have a lever which had prematurely released in the past as well as a sensitive release plate. To find that a potential danger in such circumstances was unforeseeable demonstrates a palpable and overriding error. [ 87 ] While I appreciate that XI Tech did not know that the CRM was not to be loaded using the method demonstrated to Mr. Shair, this does not alter the employer’s duty to its employees under the OHSA.

It does not matter whether XI Tech believed that the operator had to place himself in such a position due to a malfunctioning spring or by design. Rather, the issue is, once XI Tech realized that the only way to operate the CRM was to have an employee reach into the machine, thereby placing his head in proximity of the lever, did it take steps to ensure Mr. Shair’s health and safety as far as it was reasonably practical to do so. [ 88 ] In the circumstances of this case, it is not the fact that the CRM was improperly functioning which attracts liability.

Rather, it is the decision of the employer to continue its operation once the potential danger associated with the method of loading the calf was known. [ 89 ] In this instance, once the hazard was detected, a reasonable employer would have simply placed the CRM 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 CRM.

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. [ 90 ] In close relation to this is the trial judge's finding that it was unforeseeable that an unsafe ride could or would be delivered to the customer appreciation event. While I appreciate that the CRM was provided through an experienced party planner, an employer should not be able to successfully prove due diligence simply by stating that it assumed that equipment delivered to its work site would be safe.

Surely employers in every industry have an expectation that equipment delivered to their place of work will operate in the manner intended. That the reliance in this instance was placed upon a party planner rather than a supplier, manufacturer (or the like) is ultimately immaterial. Rather, the issue is whether the employer took reasonable steps to protect its workers once a hazard associated with the equipment has been identified, whether such hazard was expected (for example, in the case of inherently dangerous operations) or not.

To find that a due diligence defence can be satisfied based upon an assumption of safety would be to undermine the objectives of the OHSA. [ 91 ] In any event, as the day progressed and XI Tech became aware of the potential dangers associated with the CRM (including the need to reach into the machine to load the calf, the fact that the lever might prematurely release, and the fact that the release plate was sensitive) any reliance that XI Tech had placed upon the party planners became unrealistic.

Potential issues with the retract spring were noted early on, as the employees attempted to determine how to operate the CRM, as Mr.

Fenemore testified to during cross examination, stating [Transcript: Vol III, 514] [emphasis added]: During our testing of the retract spring, it looked like that was the point of the retract spring, that once you got the calf cocked in, if you released pressure on the lever, if the retract spring was the way it was supposed to be, it would have lifted the hook out of the tail itself so you never had to get anywhere near the mechanism . [ 92 ] I acknowledge that the facts in this case take it out outside of the “industrial norm” of most occupational health and safety caselaw.

XI Tech is not a business that is involved in inherently dangerous work such as construction, or work in the oil patch. It is not expected to be readily able to identify work site hazards in relation to machinery or to diagnose mechanical issues such as those impeding the proper operation of the CRM. The most practical and reasonable step in this instance would have to simply discontinue the use and operation of a machine with which it was unfamiliar but which presented a potential danger. [ 93 ] The verdict reached by the trial judge is unreasonable and is not supported by the evidence.

The evidence does not establish that the respondent was duly diligent in ensuring that it took reasonable steps to ensure the health and safety of Mr. Shair. Rather, it allowed the continued use of a machine despite a foreseeable potential source of danger. The appeal is allowed and a conviction is entered on Count 1.

[ 94 ] Count 2 charges that XI Tech failed to ensure that all equipment used at a work site will safely perform the function for which it is intended or was designed . It is clear that the CRM failed to safely perform its function. It was delivered to the respondent with a malfunctioning retract spring resulting in the requirement for employees to utilize an unsafe procedure to load the calf by having to manually release the spring hook. [ 95 ] The trial judge found that the circumstances of this case are unique in that the equipment which fatally injured Mr.

Shair was not equipment used by XI Tech in the normal course of its business. The CRM was not essential equipment that XI Tech was required to possess in order to run its daily operations or to further its corporate objectives; it was an optional machine utilized to amuse partygoers. The CRM was not something that XI Tech would be familiar with as an employer.

Indeed, this was clearly a situation in which employees of XI Tech were expected to have fleeting contact with a non-essential piece of equipment for a brief period of time prior to returning to their normal business duties. [ 96 ] The trial judge identified a number of factors in determining whether XI Tech was duly diligent in ensuring the CRM would safely perform its function. Notably, she found that XI Tech’s lack of familiarity in this industry caused it to rely on professional party planners to find a CRM for the customer appreciation event.

The evidence demonstrated that the CRM delivered to the party differed from the one the respondent believed it was renting (exhibit 11). Having no familiarity with such equipment, the respondent failed to note this distinction. [ 97 ] The trial judge also found that the deficiencies in the retract spring were not easily noticeable. Mr. Carter of Carter McRae evaluated the machine and did not note an obvious defect. Indeed, the OHS lead investigator, Mr. Elkins, did not believe he could properly examine the CRM and engaged Zeus Engineering to provide a report.

The report concluded that the CRM did not comply with the provisions of the Occupational Health and Safety Code respecting safeguards for equipment and machinery where workers may accidentally come into contact with moving parts of machinery, nor did it comply with the provisions relating to activation of equipment. [ 98 ] In addressing the report, the trial judge found as follows, at paras 178 - 180: As with the case involving the lack of safeguards, compliance with the provisions of this Code were under the control of Radar's Rentals, the owner who had the knowledge and industrial experience to appreciate the risks created by the device and the knowledge and control necessary to ensure that the Safety Code provisions were complied with.

The accused before the Court did not have the degree of knowledge or control of an owner or of anyone knowledgeable about the specific industry to which the mechanical device belonged. In addition to the foregoing Regulations mentioned in the Zeus Report, Mr. Elkins also identified a further cause of the accident to include the failure on the part of the Defendant company to obtain manufacturer's certifications for the calf roping machine. This is a case where the manufacturer could not be located by the investigators after the tragic event had taken place.

In my view the circumstances of the case before the Court are such that a reasonable person would not be expected to insist on specifications for the equipment, given that it was a rented entertainment device for use at a customer appreciation party. [...] [ 99 ] The trial judge went on to find that the standards for an owner/operator set forth in the Canadian Standards Association Z267 (exhibit 21: Safety Code for Amusement Rides and Devices) created an unrealistically high standard to expect from the respondent as a one-time, short term renter of equipment it was not familiar with (paras 192-198).

The trial judge agreed with Mr. Elkins that the CRM was not covered by the Code; however, it was argued that the Code might be referred to for guidance. [ 100 ] The applicant further argued that the trial judge erred in relying on R. v. Argentina Freezers and Terminals Ltd (2003), 221 Nfld & PEIR 257 (PC) in finding that XI Tech’s reliance on the event planners lessened its ability to control the equipment. While I agree with the appellant that Argentina Freezers is distinguishable on the facts, the issue is not simply whether “the judge has made errors in his or her analysis.

The review must go further than that. In every case, the court must determine whether the verdict is unreasonable”: see Beaudry .

[ 101 ] In R. v. General Scrap Iron & Metals Ltd , 2002 ABQB 665 , 322 AR 32; aff'd, 2003 ABCA 107 , 327 AR 84 this Court commented on the interplay between the intent of the legislation and the knowledge of the industry held by employers as follows, at para 100 [emphasis added]: ...The Trial Judge's approach conforms with the Driedger approach where he said: [26] The purpose of the Act is worker protection and worker safety. The intent of the legislation under which the corporate accused is charged is worker safety at the work site, in its broadest sense.

The primary responsibility for ensuring this safety is that of the employer. There are several cogent reasons for this. The ultimate goal of all workplace activity is to make a profit. One does not conduct a business to lose money, though from time to time this happens. Another reason why the employer has the primary duty to ensure safety of the workers at the workplace is that of control. Particularly in industries such as the one in question, what work is done, when it is done, how it is to be done, and by whom is in the hands of the employer, or his/her designates.

Furthermore, employers have a deeper more intimate knowledge of the workplace. They know, or ought to know, the potential and inherent hazards and dangers of their enterprise much better the employees. It is unrealistic to expect that all employees will have that same level of experience. Those that have been employed for a long time will of course be well acquainted with the potential hazards and dangers of the workplace. However, employees start working for an employer at different times, consequently there will always be varying levels of experience.

Having said that, employees must "work smart", and avoid risks and hazards that are found at the workplace. To the extent that they can recognize them, they ought to report any situations that are potentially dangerous. This does not mean that safety can be delegated to the workers. The overall responsibility for that always remains with the employer.

In the present case, the corporate accused failed to meet that responsibility. [ 102 ] The appellant argues that the trial judge erred by taking the knowledge and experience of the respondent employer into account in evaluating due diligence and that in so doing, held XI Tech to a lower standard of care. [ 103 ] I agree with the respondent that the trial judge did not hold XI Tech to a reduced standard of care in relation to its duty to ensure that all equipment used at a work site will safely perform the function for which it is intended or was designed, at least as far as this relates to her findings at paras 178-180 (which deal with lack of safeguards and its failure to obtain the manufacturer's certifications) and her finding at paras 192-198 (which deal with the obligations of an owner/operator).

Unlike the ‘typical’ circumstances discussed in General Scrap Iron , XI Tech did not possess a ‘deep and intimate knowledge’ of the workplace, nor did it know of the ‘potential or inherent dangers of its enterprise’ in operating the CRM. It was basically on the same footing as its employees when it came to operational knowledge of the CRM. [ 104 ] However, this finding does not end the matter. Rather, the issue is whether XI Tech took reasonable steps to ensure the equipment Mr. Shair was provided with would safely perform its function.

In this regard due diligence is measured against what a reasonable employer would have done in the circumstances. Here, the employer took possession of a machine that it had absolutely no familiarity with. Whether due to frustration over late delivery, a lack of articulation by Mr. Erickson, attention being diverted by incoming guests, or some other reason, XI Tech did not ensure it received adequate operating instructions for the CRM. Rather, it was content to rely on its employees to determine how the machine operated. [ 105 ] The trial judge made a number of key findings in this regard.

She found that Radar’s Rentals anticipated that operating instructions would be provided and demonstrated to renters. XI Tech did not receive such instructions and was not informed that they were normally provided. She also found that the limited instructions provided by Mr. Erickson were wholly inadequate and incomplete.

The trial judge further found that had the demonstration anticipated in the operating instructions been provided, XI Tech would have been alerted to the fact that the operator should not have to reach into the machine to release the hinge hook. [ 106 ] In determining whether XI Tech was duly diligent in ensuring the equipment its employees were provided with would safely perform its function, its actions must be benchmarked against what a reasonable employer would do in the circumstances.

It is clear that Radar’s Rental should have taken the initiative in ensuring that XI Tech was provided with operating instructions. However, when such instructions/demonstration was not found to be forthcoming, XI Tech should have requested the same. As the trial judge found, such measures would have alerted the potential operator to the fact that the machine was not functioning as intended. The circumstances of this case are such that XI Tech accepted possession of a machine that it was completely unfamiliar with.

Rather than ensuring that it received proper operating instructions and/or a demonstration, it relied upon its untrained employees to devise a method for loading the calf into the horse. [ 107 ] The trial judge addresses this issue, at para 215 of her reasons:

...The clear question arises as to whether the Defendant company was obligated to ask for and ensure they received proper operating instructions for the machine, instructions which, on the evidence in this case, would have revealed the fact that the machine's retract spring was not performing the task it should have. This failure required the operator to manually release the hinge hook, the manoeuvre which ultimately resulted in the death of Mr.

Shair. [ 108 ] This issue is also dealt with at para 208: It was not the Defendant employer who had the knowledge to identify or the ability to correct damaged parts of the machine that was brought onto the work site.

Had the operating instructions been given to them as Radar's Rentals Exhibits 14 and 19 anticipated, the existence of the faulty spring would have come to the attention of the Defendant who would then have known the machine was not intended to be operated in a manner whereby the operator had to manually release the hinge hook. [ 109 ] I do not think it could reasonably be suggested that the respondent should have identified or corrected the damaged spring hook in order to prove it had been duly diligent in the circumstances.

It would be unreasonable to expect this level of familiarity with the CRM or operational expertise in the circumstances. However, there are rudimentary steps which a reasonable employer should have taken in ensuring that equipment brought onto the work site was safe for use. [ 110 ] 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 CRM in the correct manner.

The need to receive operating instructions for a piece of machinery that XI Tech 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. [ 111 ] Simply because such instructions should have been provided by Radar’s Rentals does not absolve XI Tech of liability.

The duties incumbent upon the respondent to ensure the CRM would safely perform its function dictate the requirement to ensure it received adequate operational instructions as opposed to leaving this step to employees who were untrained in this regard.

This remains so even though the CRM appeared to be “dull” when viewed operationally, and appeared simplistic in its function. [ 112 ] Again, while the trial judge correctly articulated the law with respect to due diligence, she committed a palpable and overriding error in finding that on the facts, the respondent was duly diligent in ensuring that the equipment it provided to its employees was safe. Her verdict of not guilty cannot is not supported by the evidence. The appeal is allowed and a conviction is entered on count 2. Conclusion [ 113 ] The appeal on Count 1 is allowed and a conviction is entered.

The appeal on Count 2 is allowed and a conviction is entered. In convicting on both Counts, I wish to stress to Messrs. Fenemore and Doenz that the finding that reasonable steps were not taken to ensure the health and safety of Mr. Shair is a finding against XI Tech. The distress felt by these individuals over the incident is very apparent from a review of the transcripts and I want it made clear that the finding of liability lies with the employer and in no way with either of them personally. Penalties [ 114 ] The parties shall arrange with the Criminal Trial Coordinator for a date to speak to sentence.

Heard on the 10 th day of May, 2012. Dated at the City of Calgary, Alberta this 24 th day of September, 2012. W.P. Sullivan J.C.Q.B.A. Appearances: Brian Caruk for the Appellant David Myrol for the Respondent