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Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

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The “accident as prima facie breach” principle has been before the court in several recent cases, often with some discrepancy in its application. The principle was again before an Alberta court recently in the context of an application for particulars.

The principle provides that in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus for an occupational health and safety (OHSA) “general duty” charge, as long as the necessary elements are proven beyond a reasonable doubt. The burden then shifts to the accused to establish a due diligence defence.

In this case, a worker was seriously injured in a workplace incident and the employer was charged with 8 counts. Count 1 of the Information was a “general duty” breach allegation stating that the employer had failed to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act (Alberta). After receiving the Crown’s disclosure, the employer applied for particulars of Count 1 on the basis that there was information contained in the Crown disclosure which left the employer uncertain about what act or omission the Crown intended to rely on to sustain Count 1.

At the application hearing, the first issue before the court was whether the “accident as prima facie breach” principle for an OHSA general duty charge would preclude an order for particulars. The court reviewed the principle, noting that the case law had established that the “accident as prima facie breach” principle requires that in order for the Crown to prove the essential elements of an OHSA “general duty” charge beyond a reasonable doubt, the Crown must prove that:

  1. there was an employee;
  2. the employee was injured in an accident; and
  3. the employee was performing his or her duties in the course of his or her employment when injured.

The court noted that the principle does not relieve the Crown of establishing beyond a reasonable doubt that the employer committed a wrongful act but rather, reflects that sometimes, proof of the consequence, that is, the accident, is sufficient to establish that a wrongful act was committed. However, the principle was not one that would apply in all cases as there may be some instances where the wrongful act by the employer cannot be inferred from the circumstances of the accident.

Requiring the Crown to provide particulars of the specific acts, omissions or breaches by the employer under Count 1 would transform those particulars into essential elements of the actus reus of the offence which the Crown would then need to prove beyond a reasonable doubt. The court found that this would generally be inconsistent with the principle applicable to an OHSA “general duty” charge and would place a far higher onus on the Crown.

In the case before it, it was known why the incident happened. A boom stick being held above the ground by a hook and sling held by a caterpillar tractor fell from the hook and sling, severely injuring the worker. As such, the court determined that it was appropriate to apply the “accident as prima facie breach” principle and thus the court was precluded from making an order for particulars of the acts, omissions or breaches by the employer for the Court 1 OHSA “general duty” charge.

The court then proceeded, in obiter, and in what results in a somewhat confusing decision, to find that if the court was wrong on the conclusion that the “accident as prima facie breach” principle precluded it from ordering particulars, then the court would have made an order for particulars as requested by the employer.

R. v. Midwest Pipelines Inc., 2017 ABPC 222