Court of Appeal Rejects Due Diligence Defence in Workplace Death

August 29, 2013 | Stephen M. Torscher

Businesses strive for client appreciation events that are unique and memorable.  As highlighted in a recent Alberta Court of Appeal decision, a client appreciation event hosted by XI Technologies Inc. took a turn and became unique and memorable in a very unfortunate way.

In R v. XI Technologies Inc., 2013 ABCA 282, the defendant held a client appreciation event that coincided with Calgary Stampede celebrations. The event supplier dropped off a calf roping machine but did not include an operator or written manual. The event supplier did offer a demonstration of the equipment which was refused by the defendant.

The machine was designed to provide the rider with a calf roping experience from the seat of a stationary mechanical horse. Three employees of the defendant inspected and tested the machine. It became apparent to staff that the force of the spring that released the mechanical calf presented a danger and the machine was not functioning properly. The staff devised a procedure to manually operate the ride for partygoers.

In the course of operating the ride, a metal lever struck one of the operators in the head and killed him. The defendant was charged under the Occupational Health and Safety Act with failing to ensure the health and safety of its employees and failing to ensure safe performance of equipment in the workplace. Both charges are considered strict liability offences, meaning that that prosecution need only show that the alleged acts were committed. The prosecution need not show any measure of intent on the part of the accused.

A charge of strict liability can be defended by an accused showing on a balance of probabilities that they used due diligence in meeting their obligations. The due diligence defence is normally available to regulatory offences including those under the Occupational Health and Safety Act. The due diligence defence can be met if the accused can establish on a balance of probabilities that:

1) The accused believed in a mistaken set of facts which, if true, would render the act or omission as innocent; or

2) The accused took all reasonable steps to avoid the particular event.

Under this test the burden of establishing that due diligence was exercised is on the accused even if the impugned act was done by another party such as a contractor. Both parts of the due diligence test need not be met. As long as one branch of the test is met the due diligence defence is established.

At trial the Alberta Provincial Court judge found the defendant took all reasonable measures to avoid foreseeable risks and the danger that caused the fatality was only obvious with the benefit of hindsight.

The Crown successfully appealed the decision on the basis that the trial judge’s verdict was inconsistent with the evidence. The judge found the possibility of a premature launch while an operator reached into the machine was not remote. Convictions were entered on both counts on appeal.

The defendant was successfully granted leave to appeal its conviction to the Alberta Court of Appeal on the issue of whether the summary conviction appeal judge erred in finding the verdict was unreasonable.

The defendant’s appeal to the Court of Appeal was dismissed. The three-member panel said that the company did not do all that was reasonably practicable in the circumstances to avoid the reasonably foreseeable risks.

In R v. XI Technologies Inc., the court accepted the defence of due diligence at first instance but then denied it throughout the appeal. The Court of Appeal found the fact that XI Technologies Inc. would even consider operating a machine that no one had any familiarity with and without either its own operator or a proper set of written instructions in itself speaks volumes as to the lack of its due diligence. The Court of Appeal found this particularly so given that the machine was going to be used by party goers who would be consuming alcohol.

In the context of occupational health and safety there is a high onus placed on employers by legislation to reasonably ensure a safe and healthy working environment. Employers can be comforted by the fact that courts recognize accidents do happen. A court will not consider whether the defendant in fact foresaw the accident but whether a reasonable person would have foreseen a potential source of danger. The due diligence defence requires meeting a threshold that is reasonable to attain and does not require a standard of perfection.

The author wishes to acknowledge the significant contributions of Melissa Pearson, Student-at-Law, in the preparation of this article.


This blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of this blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.