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Oct 19, 2012

Appeal court overturns Alberta company’s acquittal after death of employee at client party

Employer should have stopped using calf-roping machine when it became clear it wasn’t working properly rather than assume event planners had it covered: Court
    
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An Alberta company that escaped health and safety charges in a trial following the death of an employee at a client appreciation event is now on the hook for the accident after the Alberta Court of Queen’s Bench overturned its acquittal.

On July 12, 2007, XI Technologies, a tech company based in Calgary, held the party while the Calgary Stampede was going on. The event included a calf roping machine, which was operated by an XI Tech employee, software developer Nathaniel Shair, 22. During the party, the machine wasn’t working properly and Shair had to manually load the calf into the machine. At one point, he was reaching into the machine and a rider launched the calf, causing Shair to be struck on the head by a lever. Shair later died from the injury he sustained. XI Tech was charged under the Alberta Occupational Health and Safety Act and Regulation with failing to ensure Shair’s health and safety as far as reasonably practicable, and with failing to ensure that the machine would safely perform the function for which it was intended or designed.

The Alberta Provincial Court found there was a business purpose to the event and Shair was being directed by other XI Tech employees, so it was part of the workplace. However, the court found XI Tech proved that it had met its duty of due diligence and the accident was unforeseeable, because the company that provided the machine didn’t give XI Tech staff proper instructions. Proper instructions would have allowed staff to know that they shouldn’t have been loading the calf manually, the trial court said.

“At no time did (XI Tech’s) staff appreciate that there was any significant risk involved with the operation of the machine, although (its) staff did identify a hazard involving the lever and the sensitive release plate. (An employee) put procedures in place which he believed would eliminate these hazards,” said the trial court.

The charges were dismissed and the Crown appealed.

The Alberta Court of Queen’s Bench overturned the decision and convicted XI Tech of the health and safety charges, finding that the accident was in fact foreseeable. The court found that staff were aware there was a danger when operating procedures were changed. At that point, the company was aware the machine wasn’t working properly and should have stopped using it, which is what a reasonable person would be expected to do. Once the issues with the machine became evident, XI Tech shouldn’t have assumed the party planners had things under control, said the court.

XI Tech has filed a leave to appeal with the Alberta Court of Appeal.

For more information see:

R. v. XI Technologies Inc., 2012 CarswellAlta 1634 (Alta. Q.B.).
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