Post-accident remedial measures were a “small bit of common-sense engineering”, relevant evidence in finding company guilty of OHSA offences

An employer’s post-accident efforts to fix a safety issue were relevant to the issue of whether it had violated the Occupational Health and Safety Act at the time of the accident, an Alberta judge has held.

An employee died after sustaining a blunt force blow to his head while working as a “floorhand” on the floor of a drilling rig. The company was charged with two offences under the Alberta Occupational Health and Safety Act: failing to ensure the safety of the worker, and failing to eliminate an identified hazard.

Over the company’s objections, the judge permitted the prosecutor to call evidence about an interlock/warning device that the company had designed and installed after the accident that would prevent, or at least reduce the risk of, similar accidents.  The judge stated:

“The Defence also argued that public policy favoured not admitting such evidence.  In my view, at least for a strict liability regulatory offence the public policy arguments favour admission.  The whole tone of the Act is to encourage proactive safe practices designed to prevent rather than react.  This requires employers to provide wide efforts at compliance.”

The court rejected the company’s argument that post-accident evidence should not be admitted because it would discourage “innovation and repair” – that is, discourage companies from fixing safety hazards after accidents for fear that the prosecutor could argue that that fix should have been implemented before the accident.

Interestingly, the court also stated,  “In not having heard of, let alone used this safety interlock the Defendant may have fallen victim to their own size and expertise in assuming that they defined industry standards . . . It is nothing more than applying a small bit of common-sense engineering to a known problem.”  The court noted that there were “other even simpler technical solutions which would have helped avoid this situation.”  The company had led no credible evidence that the engineering solution was an “unproven innovation” or an “incomplete engineering solution” that they could not reasonably have identified before the accident.

The court considered the evidence about the post-accident fix to be relevant, admissible and important. The court found the company guilty on both charges.

R. v. Precision Drilling Canada Limited, 2015 ABPC 115 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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