Executive Summary: Key Legal and Evidentiary Issues

• The employer was convicted under Saskatchewan’s Occupational Health and Safety Regulations after a worker fell from a roof and died.

• The central legal issue was whether the employer exercised due diligence in preventing the accident, under a strict liability regime.

• The trial judge rejected the due diligence defence, emphasizing foreseeability and failure to ensure the use of fall protection.

• On appeal, the court found the conviction was based on a reasonable interpretation of the facts and applicable safety duties.

• The appeal judge applied the functional and pragmatic approach to assess whether the trial decision was unreasonable.

• The conviction was upheld, reinforcing employer responsibilities under workplace safety legislation.

Facts and procedural background

Banff Constructors Ltd. was contracted to perform structural steel work on a construction project in Regina, Saskatchewan. In July 2018, a worker employed by the company died after falling approximately six metres through an unguarded opening in the roof of a building under construction. The worker had been removing steel decking and was not wearing fall protection at the time of the incident. Banff Constructors Ltd. was charged under The Saskatchewan Employment Act and The Occupational Health and Safety Regulations, 1996 with failing to ensure the use of appropriate fall protection.

At trial, the company argued that it had exercised all reasonable precautions to prevent such an incident and raised the defence of due diligence. The trial judge found that the company failed to take all reasonable steps and convicted it of the offence. Banff Constructors appealed the conviction to the Court of King’s Bench under section 830 of the Criminal Code, which governs summary conviction appeals.

Legal framework and standard of review

The case involved a regulatory offence under a strict liability regime, meaning the Crown did not have to prove intent, only that the prohibited act occurred. The employer could avoid conviction only by proving on a balance of probabilities that it exercised due diligence. The standard of review on a summary conviction appeal is whether the verdict was unreasonable or unsupported by the evidence, or whether an error of law occurred.

Justice McMurtry, sitting on appeal, applied the functional and contextual approach to determine whether the trial judge made any reviewable error. The appeal judge reviewed the evidence presented at trial, including testimony from company supervisors, expert opinions, and occupational safety officers.

Analysis of the due diligence defence

The appeal court affirmed that due diligence requires an employer to proactively identify and manage foreseeable risks. In this case, the trial judge concluded that the risk of falling was plainly foreseeable and that Banff Constructors failed to implement sufficient safety measures. The employer had not adequately ensured that the worker was trained and instructed to use fall protection in the specific context of working near roof openings. Additionally, there was evidence of inconsistent supervision and a lack of specific safety briefings related to the task being performed at the time of the accident.

Justice McMurtry found no reversible error in the trial judge’s assessment. The findings were supported by the evidence, and the judge had correctly applied the legal test for due diligence in a strict liability context.

Outcome

The appeal was dismissed, and the conviction against Banff Constructors Ltd. was upheld. The decision reinforces the principle that employers bear the onus of ensuring safety protocols are not only in place but also followed and enforced on the worksite. The ruling serves as a reminder of the stringent duties imposed by occupational health and safety legislation in Canada.