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Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

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We previously posted about the trial decision in R. v. Precision Drilling Ltd., 2015 ABPC 115 (CanLII), where the court found the employer guilty of two charges arising from a workplace fatality at a drilling rig. The employer was convicted of failing to ensure the safety of the worker, and failing to eliminate an identified hazard. The employer appealed the convictions.

At trial, one of the issues was the question of industry standards, in particular, the use of an interlock/warning device. On appeal, the court noted that the trial judge had correctly stated that compliance with industry standards and legislation would not, of itself, be enough to establish due diligence. In this case, the appeal court found that the evidence was that the employer did follow industry standards. The trial judge however found that the interlock device was an engineered solution in place with other industry competitors, that could have been used to avoid the accident. The trial judge relied on this in concluding that the employer had not established the defence of due diligence.

The appeal court found that the trial judge’s conclusion about the competitor’s use of the interlock device was contrary to the evidence. In fact, the evidence at trial was that only one competitor had an interlock device on one rig, and that rig was a different type of rig from the rig in question. Further, the Occupational Health and Safety inspectors were not aware of the interlock device prior to the accident. Therefore, the appeal court determined that the trial judge’s misapprehension of the evidence was a palpable and overriding error.  It also found that the trial judge made a number of additional errors in the treatment of the evidence which undermined the verdict.

Further, while the appeal court did not find any error in the trial judge’s decision to admit evidence of the employer’s post-incident conduct at trial relating to its development and use of an interlock device after the accident, the trial judge’s use of that evidence was not supported by the evidence. The appeal court found that, in addition to the error about the industry’s use of the interlock device, there was no evidence that the competitor’s “small bit of common-sense engineering” had an effect on the drilling industry. The interlock device had not been adopted in the Occupational Health and Safety Code and government inspectors did not shut down rigs that did not have the interlock device.

The appeal court allowed the appeal on both counts, setting aside the trial verdicts. Because there was admissible evidence on each of the elements of the charges, rather than entering an acquittal, the appeal court ordered a new trial.

R. v. Precision Drilling Canada Ltd., 2016 ABQB 518 (CanLII)