Ms Cristina Wendel

Cristina Wendel

Updates

Litigation

Alberta Court of Appeal clarifies what the Crown must prove in a general duty offence
Canada | 25 September 2018

The Alberta Court of Appeal recently provided clarity on what the Crown must prove in a prosecution under the Alberta Occupational Health and Safety Act regarding the failure to ensure the health and safety of workers. The key question before the court was whether the expression "as far as is reasonably practicable for the employer to do so" in the general duty section of the act was part of the physical components of the offence that the Crown had to prove.

Vehicle owner not liable for accident caused by repair shop employee during driving test
Canada | 10 July 2018

The Alberta Court of Appeal recently reviewed the provisions of the Workers' Compensation Act that enable the Workers Compensation Board (WCB) to be subrogated to the right of a claim against a party not covered by the act when the WCB has paid out benefits to a party that is covered by the act. The court confirmed that pursuant to the act, defendants that are not protected from suit should not be held liable for the portion of loss caused by an employer or worker that is protected from suit.

Sham investigation results in C$75,000 aggravated damages award against employer
Canada | 22 May 2018

An employer that terminated an employee alleging just cause has been ordered to pay damages for wrongful dismissal, including an aggravated damages award of C$75,000. The court was satisfied that the employer's actions amounted to a breach of the obligation of good faith and fair dealing, and supported an award of aggravated damages. The employer's false reasons for dismissal and inadequate and unfair investigation had resulted in the plaintiff failing to receive procedural fairness.

Court accepts joint submission and orders employer to pay fine of C$100,000 following workplace fatality
Canada | 01 May 2018

The Territorial Court of the Northwest Territories recently considered and accepted a joint submission from the crown and defence, sentencing an employer to a C$100,000 fine. The court considered the significance of a joint submission, noting that it is usually the result of a negotiation process between lawyers. This process is important to the administration of justice; thus, the courts should defer to a joint submission within the bounds established by the Supreme Court of Canada in an earlier case.

Court rules that employee's theory of dismissal for questioning employer's safety systems not evidence
Canada | 20 March 2018

The court in a recent wrongful dismissal case dismissed the plaintiff's allegation that he had been dismissed after making suggestions about improvements to the employer's safety systems. The court found that the plaintiff's theories were unsupported by the evidence and insufficient to justify an award of aggravated or punitive damages. It therefore held that the employer's conduct was not malicious and high handed so as to warrant additional damages and dismissed that aspect of the plaintiff's claim.

'Accident as prima facie breach' principle precludes order for particulars
Canada | 23 January 2018

An Alberta court recently considered the 'accident as prima facie breach' principle in the context of an application for particulars. The principle provides that, in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus (ie, guilty act) for an occupational health and safety general duty charge. The burden then shifts to the defendant to establish a due diligence defence.

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal
Canada | 08 August 2017

The Saskatchewan Court of Appeal recently dismissed the crown's appeal of the acquittal of an employer in a case involving a worker who died of suffocation in a grain terminal. It found that while proof of an accident may be enough to establish the elements of the general charge that an employer failed to ensure the health and safety of an employee, where the crown has particularised a charge, it must prove all of the necessary elements.