Judge convicts firm in Stampede party death
An appellate judge has convicted a small Calgary family tech company of two charges under the Occupational Health and Safety Act in connection with the death of an employee helping operate a mechanical calf roping machine at a Stampede customer appreciation party five years ago.
In his decision overturning a provincial court ruling, Court of Queen’s Bench Justice Patrick Sullivan ruled trial Judge Sharon Van de Veen erred in acquitting XI Technologies last year of the charges of failing to ensure the health and safety of employee Nathaniel Shair, 22, and failing to ensure the device would safely perform the function for which it was devised.
“The evidence in this case cannot lead to a finding that XI Tech took reasonable care and did what was reasonably practical to ensure the health and safety of Mr. Shair,” wrote Sullivan in his decision released this week. “It was unreasonable for the trial judge to find, on the evidence she accepted, that the employer met its onus of providing due diligence on a balance of probabilities.
“Rather, the evidence clearly demonstrates the following: the (machine) was delivered to XI Tech at the party premises late and without adequate operating instructions or warnings.”
David Myrol, counsel for XI, said he wouldn’t comment on the decision. However, he noted from reviewing the decision the company won on all appeal issues except one.
He said XI is considering an appeal to the Alberta Court of Appeal.
Sullivan said while he appreciated that XI did not know that the machine dropped off by a supplier that day was not to be loaded using the method demonstrated to Shair — who died from head injuries after the spring-loaded lever to release the mechanical calf deployed — this does not alter the employer’s duty to its employees under the OHSA.
He said that once XI realized that the only way to operate the machine was to have an employee reach into the machine, thereby placing his head in proximity of the lever, the onus was on the company to take steps to ensure Shair’s safety as far as it was reasonably practical to do so.
“In the circumstances of this case, it is not the fact that the (machine) was improperly functioning which attracts liability,” said Sullivan. “Rather, it is the decision of the employer to continue its operation once the potential danger associated with the method of loading the calf was known.
“In this instance, once the hazard was detected, a rea- sonable employer would have simply placed the machine off to the side and hung an ‘out of order’ sign on it. It would not have expected its employers to determine the ‘most safe’ (or least dangerous) method of operation. It would not have permitted untrained employees to reach into a piece of equipment. Rather, it would have discontinued all use of the machine.”
Shair, a student just completing his education at the University of Calgary, was working as a summer student at XI as a software developer/ data analyst.
Sullivan sent the case back to provincial court for sentencing.