This case involved a fish processing company and its two weigh masters who were charged with under-reporting the weight of a load of snow crab by approximately 5,000 pounds. At trial, the second weigh master advanced a defence of mistake of fact and the fish processor advanced a defence of due diligence.
With respect to the mistake of fact defence, the weigh master argued that he had relied upon weights taken from the grader’s sheet, which were in turn taken from incorrect weights provided by an independent dockside observer. In rejecting this defence, the trial court court reasoned that the reliance upon the weights provided by the dockside observer without first cross referencing those weights against the weights independently compiled by the two weigh masters was not reasonable.
With respect to the due diligence defence advanced by the corporate fish processor, the trial court rejected a due diligence defence because the "corporate defendant put forward no evidence to suggest it had an established system in place to record the weights, to submit the appropriate forms and to make certain that these forms accorded with fact" (para. 36).The court suggested that evidence of due diligence would have included evidence of: (a) appropriate training; (b) a procedures manual; (c) a rule that the purchase slip should not be signed until the final weigh in has been completed; or (d) a formal system for ensuring that information slips sent to D.F.O. are accurate. As a result, the corporation could not rely upon a due diligence defence to escape from liability for the acts of its employees.
The decision of the trial court was upheld by both the Trial Division at a summary conviction appeal and by the appellate division. The Court of Appeal also accepted and recognize what was stated by Fitzpatrick, J. in R. v. Courtaulds Fibres Canada (1992), 76 C.C.C. (3d) 68 (Ont. Ct. J.), where at page 77 he stated:
Reasonable care and due diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt, and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability.