Crown appeal from a summary conviction appeal judgment overturning convictions under the Occupational Health and Safety Act [OHSA] in relation to a workplace fatality. Questions of law on appeal were (1) whether the appeal judge erred in requiring the Crown to prove negligence or negate due diligence as part of the actus reus and (2) whether the appeal judge erred in assessing due diligence.

Held: Appeal dismissed.

Violation of s. 2(1) of the OHSA (setting out a general duty to ensure the health and safety of workers) is a strict liability offence. The phrase in s. 2(1), “as far as it is reasonably practical for the employer to do so”, is an element of the actus reus, not a codification of the due diligence defence. Thus, Crown must prove that “it was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake”. This interpretation, however, is not equivalent to requiring the Crown is to prove negligence. Wakeling, JA, concurred in the result but disagreed that the phrase at issue should form part of the elements of the offence.

P. Taschuk – Defence Counsel