Lonkar Well Testing Ltd. (Lonkar), which was convicted of one count of violating Alberta’s Occupational Health and Safety Act at trial, had the conviction overturned on appeal on the basis that it had established the second branch of the due diligence defence.  

Although the prosecution relied on the decision of the Court of Appeal for Ontario in Dofasco, the Alberta Appeal Court judge distinguished the Dofasco decision. By way of background, I commented on the Dofasco decision in an earlier article in COS entitled, The Death of Due Diligence.

The Dofasco case has been used by a number of prosecutors, both in Ontario and across the country including Alberta, to secure a conviction.

The decision in Lonkar now addresses the context of the Dofasco decision and, in this writer’s view, properly reinstates the defence of due diligence as originally intended by the Supreme Court of Canada in the Sault Ste. Marie decision of 1978.

The Lonkar case involved a tragic set of circumstances in a workplace. A young worker died when he asphyxiated in a well testing trailer in northwestern Alberta. The trial court held that the deceased performed work that he was expressly not told to do, and warned about the hazards by his supervisor.

Interestingly, the worker was known to be a reliable safety conscious worker, and had never before deviated from his instructions. The trial court held that the deceased also told co-employees what they were not supposed to do.  

However, contrary to his training instructions and his own statements to others at the job site, the worker undertook the task of taking apart piping that ultimately exposed him to a lower oxygen level, which either caused or contributed to his death.  

On appeal, Judge Hillier of the Queen’s Bench, sitting as an appeal court judge in Alberta, held:

“I am very mindful that the standard of review on this aspect of the decision is overriding and palpable error. I am also mindful of the policy reasons which underlie decisions finding employers liable where employees engage in unwise or foolhardy acts to accomplish their work.
However, were that approach to extend to all truly bizarre and unforeseeable acts by employees, the result would render employers, insurers of worker safety and the legal regime would be one of absolute liability.
Although cases of bizarre and unforeseeable acts are exceedingly rare, in my view the unlikely and inexplicable scenario which resulted in Audit’s tragic death falls squarely within that category.”

Further, in reviewing the Dofasco case Justice Hillier said:

“In Dofasco, the accused admitted that it had not equipped a machine with a guard as specifically required by regulation.
Logically, an employer who has breached a specific positive obligation mandated by regulation must provide a compelling rationale to support a finding that it, nonetheless, took all reasonable care to ensure the safety of workers. In the present case, however, no breach of a legislatively mandated safety precaution or industry standard was found.  It fell to the trial judge to determine, in the absence of any specific regulatory breach giving rise to the tragedy, whether Lonkar had probably taken such steps as were reasonably practicable in the circumstances to ensure Audit’s health and safety.

The decision in Lonkar is clearly based on the specific facts and circumstances of that case. However, in upholding the standard of due diligence set by the Supreme Court of Canada in Sault Ste. Marie, Justice Hillier said:

“However, in assessing on a balance of probabilities whether Lonkar took all reasonably practicable steps in this case to ensure the safety of Audit, one must approach the problem on the basis of the facts which existed prior to the occurrence.
I have found that if one places oneself in the shoes of a reasonable person prior to the occurrence, there was no more than a very speculative basis for the safety precautions identified in the trial judge’s decision. In my view, the trial judge erred in concluding that Lonkar did not take reasonable care in the circumstances of this case.”

Finally, due diligence defence is based on an effective OHS management system, as demonstrated by the excellent safety program of Lonkar. An effective OHS management system has, at minimum, an OHS policy, effective risk assessment, written safe work procedures, effective training of supervisory and worker staff, communication of the worker’s right to refuse to do unsafe work, periodic safety reminders by supervisors or professional safety staff, and a regular review or audit of the OHS performance of a company.

These elements, together with an effective commitment to OHS excellence by senior management, will usually result in a company and senior management being able to rely upon the second branch of the due diligence defence.

The Lonkar decision, and its interpretation of the Dofasco decision, do not contradict each other, but are reasonable application of the Supreme Court of Canada’s decision in Sault Ste. Marie.

An ongoing emphasis and priority on occupational health and safety training and auditing is critical for ensuring an effective OHS management system and a successful defence based on the second branch of the due diligence defence.

Although Judge Hillier’s decision in  Lonkar is not necessarily a ‘rebirth’ of due diligence, it is a refreshing review and application of the defence as set out by the Supreme Court in Sault Ste. Marie.  

Further, its review and application of the Court of Appeal for Ontario’s decision in Dofasco identifies the limits of the decision in that case. In short, due diligence is alive and well as a defence to OHS charges across Canada.
 
Norm Keith leads the national OHS practice at Gowling Lafleur Henderson LLP. You can reach him at (866) 862-5787 ext.85699 or by email at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it