Law 534
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Jan 9, 2024
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Law 534
Actus reus- prohibited act
Week 6 chapter 9
Regulatory offences: a paradoxical tale of risk analysis
The apparent paradox explained: how to show due diligence if actus reus has been
proved
No fault system simplifies things greatly which is decided by society ex. Workers compensation,
no fault auto insurance systems
Proof of a statutory violation can be used as evidence of negligence however not determinative
of the issue; just like actus reus is not determined without due diligence
Authors state that paradox arises
Three possible ways out of this paradox:
1.
Focus on reasonable precautions
-
Reasonable system
-
Past practice with the system
2. Use risk management concepts that
predict different time scenarios
- Elmo toy illustration
3. Permit reference to actions taken after the fact (When a charge is laid, argument is its
committed act.) (but this method is subject to criticism
why? Cannot consider even after the
charge period)
Note
R. v. Alexander
:
- dispose waste only in a container; defendant created an improvised waster disposal
Important reminder that individuals aren’t permitted to substitute their risk assessment for that
of the legislature ( cannot create your own standard, must be a standard that may be used by
everyone to make it fair)
Applies to precise statutory standards
Not actually a paradox but a potential paradox
•
Focus on type or category of actions
•
Not a broader notion of acting reasonably
R. v. Canadian Tire Corp.
•
Importation of CFC fridges
•
Broadly worded policy is unacceptable to meet compliance standards
•
What could Canadian Tire have done?
Would’ve looked at what was the actual due diligence. Look at the laws
related to what is required for the specific business
Vancouver (City) v. Access Collateral Pawnbrokers Ltd.
–
error in transmitting information to
police; generalized history of accurate records not sufficient
Brampton Brick
-
moving large pipe with forklift instead of a crane
Ontario (Ministry of Labour) v. Wal-Mart Canada Corp
.
- Due diligence must be linked to a particular circumstance and not broad notions
Mistake of fact
Articulated by Dickson J in
R v. Sault Ste Marie
•
Defence available if the accused relies on a mistaken set of facts; if true, renders
act or omission innocent
•
R. v. Ellis Don Corp
•
An inspector took pictures of a worker working on 6
th
floor who was not
tied on. Court held that defendant took all steps to prevent infraction of
standards.
•
R. v. Marathassa
•
-
an example of reasonable belief – that the vessel would not leak – due
diligence upheld
Note the six factors which must be shown – all six required and it is not necessarily an easy
defence
1.
Error of law of mixed law and facts
2.
Due regard to the legal consequences of their action
3.
Advice came from appropriate official
4.
Advice was reasonable
5.
Advice was erroneous
6.
Reliance on the advice on committing the act
Not to be confused with the
R. v. Stucky
case which did not involve a government official
•
Objective standard – must be reasonable
•
R. v. Cancoil Thermal
•
- Ministry inspector saw a machine operating without a specific metal
guard and satisfied it didn’t contravene any standard. Argument for
officially induced error failed
Not to be confused with the
R. v. Stucky
case which did not involve a government official
•
Objective standard – must be reasonable
•
Maitland Valley Conservation v. Cranbrook Swine Inc.
•
Built to barns and liquid manure storage tank without permit from
Conservation Authority; no evidence of reliance on official advice.
•
Lévis (City) v. Tétreault
•
SCC confirms officially induced error as a defence but text authors note
that it is a high bar that is not likely to be reached in many cases
•
Lévis (City) v. Tétreault
•
SCC confirms officially induced error as a defence but text authors note
that it is a high bar that is not likely to be reached in many cases
•
What is the bottom line?
Explain how this might be relevant in a business
manager’s life?
•
Take note of the 6 factors and be guided by them as a defence for
potential law suit
•
Narrow range of this exception:
•
R. v. Beierl
–
court held that advice from a duty counsel (legal aid lawyer)
not to take breathalyzer not sufficient to succeed in officially induced
error
•
R. v. Pea
–
whether a duty counsel was a govt official? Court said no;
being paid by public funds does not make you a govt official
•
What is the bottom line?
Explain how this might be relevant in a business
manager’s life?
•
Take note of the 6 factors and be guided by them as a defence for
potential law suit
•
Narrow range of this exception:
•
R. v. Syncrude Canada Ltd.
•
- Representations by federal officials was not proven to be
erroneous; therefore argument for officially induced error did not
succeed.
•
•
R. v. Bedard
–
•
-
2 peace officers who sought the advice of police on arrest could
not establish that they relied on the police officer’s advice
•
Due diligence
•
- Evolved into a complex subject
•
- Has its own jurisprudence
•
- Easy to understand but requires much more detail to put into operation
•
The authors point to case law and discuss common 14 factors that have appeared in case
law
•
No magic formula – simply factors which help evaluate how to proceed with due
diligence
1. Nature and Gravity of the Adverse Effect
•
Ontario (Ministry of Labour) v. Lockyer
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•
Important risk management lesson about just having oral
communications
•
Risk of workers falling 10 feet
•
Mere communication with workers on fall equipment was not due
diligence
•
R. v. B. Gottardo Site Servicing Ltd.
•
Industry specific considerations in construction site
•
Gravity of adverse effect central to conviction of defendants
2. Foreseeability of the Effect
•
Similar principles to tort law – negligence
•
R. v. Vipond
•
Worker seriously injured when he fell into a hole that was left unguarded.
•
R. v. Skyway Equipment Co
.,
•
- For the position that the court may accept defence of due diligence
where the source of danger is not foreseeable
•
R v. Rio Algom
•
Not whether defendant foresaw the danger
•
But whether a reasonable person would have foreseen the danger
•
Application in
R. v. Devlan Construction
•
Tragic case about probationary apprentice
•
R. v. 20207000 Ontario Inc.
•
Using an expert as a benchmark for foreseeability; the fire that reingnited
one month later
•
Compare to R. v. Sunshine Village Corp.
•
Risk management lesson – having a strong system of due diligence
3. Alternative Solutions Available
•
Comparing what was done with what could have been done (danger: hindsight
bias)
4. Legislative or Regulatory compliance
•
This should say “past record of compliance”
•
Seems to be out of place for due diligence:
Legislative or Regulatory compliance
•
Note discussion about
Rio Algom
author’s suggest can use past compliance as
evidence of good system
•
Even more problematic is
R. v. Vipe Construction
case
•
Key issue: due diligence is what was done to PREVENT the harm