WORKPLACE HEALTH AND SAFETY – Offences and enforcement – Appeals and judicial review – Offences – Failure to …

Appeal by the Crown from the acquittal of the defendant, Viterra Inc. (Viterra), on six offences under the Canada Labour Code related to the death of a worker. Viterra owned and operated a grain terminal. In 2011, a worker entered a grain receiving pit in the terminal to address a blockage. He was engulfed in grain and died of suffocation. Viterra was charged with failure to provide proper instructions, training and supervision to ensure the worker’s health and safety, and failure to advise the employee of foreseeable health and safety hazards. The trial judge acquitted Viterra. He found that the Crown had not established the actus reus of the offences. He found that the worker was not directed to enter the grain pit to clear a blockage, that the worker had relevant safety training, and that the worker knew he was not to enter a confined space without following safety procedure. The judge further found that Viterra had exercised due diligence in respect of the training and education received by the worker. The Crown appealed, arguing that the judge erred in finding that the actus reus had not been proven and in finding that due diligence had been established.

HELD: Appeal dismissed. The actus reus of a contravention under ss. 124 and 125 of the Canada Labour Code was not necessarily established by proof of the injury or death of an employee at the workplace. All of the elements of the actus reus, as particularized in the charge, must be proven. Here, the Crown was required to prove that Viterra: (a) failed to instruct the worker on how to unplug the blockage in a safe manner; (b) failed to ensure the worker had the necessary training and supervision to ensure his health and safety when responding to a blockage; and (c) failed to ensure that the worker was aware of the hazard of being engulfed by grain in a receiving pit. The worker was not instructed to clear a blockage. Furthermore, he learned from his training that he was not to enter a confined space until he had received the necessary training and safety procedures for doing so. In addition, the normal procedure for clearing a blockage did not involve entering the receiving pit, therefore the task was not inherently dangerous. Finally, given the training the worker received, Viterra had made the worker aware of the specific hazard of being engulfed by grain in an enclosed space.

R. v. Viterra Inc., [2017] S.J. No. 256, Saskatchewan Court of Appeal, J.G. Lane, M.J. Herauf and P.A. Whitmore JJ.A., June 21, 2017. Digest No. TLD-August142017004