[author: Lindsay Mullen]
Recently we posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The appeal court overturned the two “not guilty” verdicts of the trial judge in relation to the fatal incident involving a “calf roping machine” at a Stampede Week party event, held at a hotel. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.
The employer was charged with two offences under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.
On the evidence, the trial judge found that the employer had raised a successful due diligence defence and found the employer “not guilty” of the charges. The Crown appealed and the verdicts were overturned. The appeal court disagreed and found that on the evidence, due diligence on the part of the employer could not be established.
The employer is now asking that Alberta’s highest court consider this case and clarify the law as to the defence of due diligence. The application for leave to appeal is scheduled to be heard by the Alberta Court of Appeal on November 22nd.