Saskatchewan Employer Successfully Raises Due Diligence Defence Despite Serious Safety Failings of its own Supervisor and Worker

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Earlier this year, the Provincial Court of Saskatchewan examined the alleged safety failings of a
Crown Corporation’s supervisor and employees in R v Saskatchewan Power Corporation, 2016
SKPC 002. The case involved the unauthorized use of a torch in the workplace. SaskPower
successfully raised the defence of due diligence and was acquitted on all four charges brought
against it under The Occupational Health and Safety Act, 1993 and The Occupational Health
and Safety Regulations, 1996. The case is an important one for employers and we expect it will
have implications for OHS prosecutions brought under the recently enacted Saskatchewan
Employment Act.
At a production meeting involving SaskPower management and the supervisor of the utility crew
in question, the supervisor mentioned doing something about an ice accumulation in a culvert
under the road leading to a cooling tower. Management did not think the ice was a hazard. The
supervisor was told not to address that task and was not authorized to deal with the ice
accumulation.
The supervisor proceeded to address the ice accumulation in any event by placing an ignited
tiger torch attached to a propane tank near the ice mass and wrapping a tarp around the end of the
culvert to trap the heat. The torch was left unattended. Later, the supervisor told a worker to
check the torch and ensure it was still lit. When the worker checked the torch, the flame was out
and he re-lit it. He did this twice. On the second occasion, a fireball burnt the worker’s face,
fingers, hand and arms, seriously injuring the worker and requiring hospitalization.
SaskPower was ultimately prosecuted and the Court considered SaskPower’s responsibility in
relation to four charges under the OHS Act and Regulations for: a) failure to properly train its
workers; b) failure to ensure proper and competent supervision of a place of employment; c)
failure to control or eliminate all or potential sources of ignition where an explosive atmosphere
exists; and d) failure to ensure the health, safety and welfare at work of all of the employer’s
workers.
At trial, the Crown was able to prove the underlying acts complained of. It then fell upon
SaskPower to raise the defence of due diligence to avoid conviction by proving on a balance of
probabilities that it took all reasonable care to avoid the result or that it held a reasonable belief
in a set of circumstances that would render its acts or omissions innocent.
The Court considered s. 61 of the OHS Act, the vicarious liability provision (now s. 9-8 of the
SEA). In summary, that provision deems “any act or neglect on the part of a manager, agent,
representative, officer, director or supervisor of the accused” to be “the act or neglect of the
accused.” Importantly, the Court confirmed that the provision did not take away the
employer’s/accused’s ability to raise a defence of due diligence.

The Court found that SaskPower had successfully demonstrated due diligence on each count. In
particular, SaskPower had made significant attempts to impress on its employees that safety was
a critical part of their work and had established a work procedure focused on avoiding harm to its
workers which was designed to avoid incidents like this one. Further, work orders were required
for scheduled work, and morning tailboard meetings were held to discuss what work was to be
done, who would do it and how it would be done safely. Following those tailboard meetings,
workers assigned to a task were required to complete a safety and risk hazard assessment form.
In the context of this case, the Court found that no work order to deal with the ice accumulation
work was obtained, no “hot work” permit was sought and no safety and risk hazard assessment
form was completed by the supervisor or the worker at any time even though such protocols
were put in place for the safety of SaskPower employees.

With respect to the supervisor, the Court held that SaskPower provided the supervisor with
everything he needed to know to avoid the incident. Although more safety training could have
been provided, on a balance of probabilities, SaskPower took all reasonable care to train the
supervisor to avoid the type of incident that injured the worker. With respect to the worker, the
Court held that the “tiger torch” was used infrequently and SaskPower could not have reasonably
expected the worker to use that tiger torch on the day of the incident. Therefore, training the
worker on this tool did not form an essential part of SaskPower’s duty to train its workers.

Overall, the case demonstrates that the defence of due diligence is a viable defence in the context
of OHS prosecutions. An employer does not need to be perfect. Rather, it needs to take
reasonable care to ensure adequate safeguards are in place to prevent against reasonably
foreseeable hazards. Further, the availability of the due diligence defence is not impacted by the
vicarious liability provisions of Saskatchewan’s OHS legislation.

MLT’s compliance, risk management, and crisis response team provides timely, coordinated and
integrated expertise and advice in various practice areas including occupational health and
safety. We use our experience to identify, review and provide advice on risks, potential gaps and
regulatory compliance, and help clients develop, evaluate and manage policies and programs
with a view to establishing due diligence strategies for employers. For more information, please
visit our website.