Workplace Wire

The Alberta Court of Appeal will soon hear a motion for leave to appeal convictions under Alberta’s health and safety legislation following the death of a worker during a Calgary Stampede party.

In 2007, a small technology company, XI Technologies Inc. (“XI”), hosted a customer appreciation party at a hotel during the Stampede.  As part of the entertainment, XI rented a calf-roping machine.  The calf-roping machine arrived at the party without operating instructions or warnings about any potential dangers, so it was left to XI to determine how the machine worked and to come up with procedures to operate it.  A young XI employee, Nathaniel Wai-Kit Shair, proceeded to assist with the operation of the calf-roping machine throughout the party.  Toward the end of the day, a rider on the calf-roping machine triggered the release of the calf before Mr. Shair had completed disengaging a hinge hook which held the calf in place.  The premature release of the calf caused a steel lever to spring forward with significant force just as Mr. Shair reached into the back of the machine to disengage the hinge hook.  The lever struck Mr. Shair in the head and he died several days later.

XI was charged under Alberta’s occupational health and safety legislation with failing to ensure Mr. Shair’s health and safety as far as reasonably practicable, and with failing to ensure that the calf-roping machine would safely perform the function for which it was intended or designed.

Following a trial, XI was acquitted of all charges.  The trial judge found that the accident had taken place at a “work site” because the hotel was a place where the business of the company was being carried out.  The trial judge noted that XI had relied upon external event planners to provide safe activities and entertainment.  In terms of the accident itself, the trial judge found that the accident was not foreseeable and the company had taken all reasonable steps to prevent it, such that it could avail itself of a due diligence defence.  Specifically, the trial judge commented that when representatives of XI noticed that the steel lever was malfunctioning and determined that an employee would have to reach into the machine to manually disengage the hinge hook to release the calf, they put in place a procedure to attempt to eliminate the hazard associated with this action.  Overall, the trial judge found that the danger posed by the malfunctioning steel lever would not have been obvious to a reasonable person at the time of the accident.

On appeal to the Court of Queen’s Bench of Alberta, the trial decision was overturned and XI was convicted.  The Court concluded that it was unrealistic for XI to place reliance on the external event planners once it noticed that the steel lever was malfunctioning.  Furthermore, it found that once XI realized that the steel lever was malfunctioning, it should have realized that a danger existed and it should have stopped using the calf-roping machine completely in order to prevent a risk of harm.  As XI did not do so, the Court found that XI’s defence of due diligence failed.

XI has now filed documents in the Alberta Court of Appeal seeking leave to appeal the conviction imposed by the Court of Queen’s Bench.  The Calgary media is reporting that the application for leave to appeal will be heard on November 22, 2012.

We will continue to monitor the case for our readers. (Editors’ Note:  Leave to appeal this case to the Alberta Court of Appeal was granted on November 30, 2012.  See decision here:  http://www.canlii.org/en/ab/abca/doc/2012/2012abca368/2012abca368.pdf)