In the health and safety context, the principle of “joint and several liability” means that multiple parties can be held liable for the same workplace incident, regardless of their individual share of the liability.
As we’ve said in previous posts, however, that doesn't mean that it will always be appropriate or in the public interest to prosecute everyone involved in an incident. Sometimes the facts and rationale necessary to make that determination emerge prior to charges being laid, whereas other times it's only after, and through the work and efforts of experienced defence counsel.
That's exactly what happened in one of our recent cases, where charges were initially brought against both our client, and a worker from another company that was performing services on site, for the roles they allegedly played in a workplace incident.
Although workplace health and safety took conduct of the subsequent investigation and ultimately recommended charges, our own investigation into the matter revealed that although not a “farming and ranching operation” in the traditional sense, our client and its workers were, at the time of the incident, involved in the “production of crops” and in the “raising and maintenance of livestock”. The result, legally speaking, is that our client was captured by the terms of what was then the Farming and Ranching Exemption Regulation, and therefore not subject to the OH&S Act, Regulation, or Code. The same could not be said for the worker from the other company, however, who remained subject to the legislation, and the existing charges.
The Crown, for its part, disagreed with our assessment in favor of an interpretation that would prevent the exemption from applying at all, thereby making a court application to determine the proper scope of the exemption necessary. Affidavits were sworn and briefs were filed, but the application never went ahead. As a result of our efforts (relating to the exemption and otherwise), and only a month before the trial was scheduled to begin, the Crown agreed to accept a guilty plea on behalf of the worker, and stayed the charges against our client!