The OHS Due Diligence Defence: 5 FAQs
Published:
May 2, 2016
Author(s):
Updated October 4, 2023.
Workplace accidents regularly lead to charges under occupational health and safety (OHS) law. These charges can be against companies, any of their supervisors, officers, directors or workers personally, or both. However, “due diligence” is a legal defence to charges under OHS laws. Here are five of the most frequently asked questions about the legal defence of due diligence and practical tips to help you incorporate due diligence in your workplace.
1. What does “due diligence” mean in the context of the legal defence to an OHS charge?
OHS charges are known as “strict liability” offences. This simply means the prosecutor is only required to prove beyond a reasonable doubt that the defendant committed the prohibited act or omission; the prosecutor doesn’t need to prove the defendant was negligent. However, once the prosecutor has proved this the defendant can escape liability by proving, on a balance of probabilities, that they exercised “due diligence”. Due diligence is a standard of care that’s generally equated with an absence of negligence: the taking of all reasonable care that a reasonable person would have taken in the circumstances. “Reasonable care” isn’t a standard of perfection; it’s a variable standard that depends on the circumstances. The appropriate degree of care depends mainly on:
- The gravity of the potential harm.
- The alternatives available to the accused.
- The likelihood of harm.
- The degree of knowledge or skill expected of the accused.
- The extent to which underlying causes of the offence are beyond the accused’s control.
Where there’s been a failure to exercise due diligence and injury or death resulted, the Crown can instead or in addition bring criminal negligence charges against the defendant under the Criminal Code of Canada. The fundamental distinction between OHS charges and criminal charges is the degree of fault. For criminal negligence, the prosecutor must prove beyond a reasonable doubt not only that the defendant committed the prohibited act or omission but also that the act or omission caused the injury or death and that the defendant had the required level of fault (the mental intent) for the offence. To do so, the prosecutor must prove that the defendant’s conduct went significantly beyond simple negligence (that is, the absence of due diligence); they must prove it was a marked and substantial departure from the conduct reasonably expected under the circumstances. Therefore, while “due diligence” isn’t a defence to criminal negligence, where a defendant exercised due diligence the offence of criminal negligence can’t be proven.
2. Why are due diligence and a culture of workplace safety so important?
Exercising reasonable care to ensure compliance with legal obligations under OHS laws and promoting the safety of all workers is fundamental to proving the legal due diligence defence in the event of an OHS charge. Due diligence and a culture of workplace safety also help accomplish the following that together improve your bottom line:
- Prevent workplace injuries and be prepared for an emergency.
- Increase productivity and employee morale.
- Manage costs, such as lost time and workers’ compensation claims.
- Maintain public confidence and increase competitiveness.
3. Who has obligations under OHS laws and what are they?
OHS is a shared responsibility. OHS laws place both general and specific obligations on companies and their directors, officers, managers, supervisors and workers. Each faces potential liability if their conduct falls below the appropriate standard to satisfy those obligations. And each should be fully aware of their legal obligations and the standard of care the law requires of them.
4. Practically, how do I establish the “due diligence” defence?
You achieve this by both discharging your duties with respect to a particular occurrence and having evidence you did so. Here are 5 key practical steps to take.
Commit. Commit to building an internal culture of safety, including inviting and allowing employee participation and allocating adequate resources to OHS.
Be Aware. Ignorance of the law is no defence. While in the context of a a criminal negligence prosecution, the New Brunswick Court of Kings Bench in its 2023 decision in R. v. King made a comment equally fitting in the context of OHS strict liability offences (para. 147, emphasis added),
“Even though [the supervisor] testified that he never read any of the legislated duties that attach to a supervisor, that does not mean that he was not bound by them and obligated to follow them. It could be no other way.”
Be aware of all legal duties and industry standards and practices, ensure others are also aware of theirs, keep up with – and act on – changes and have a system in place to make sure this all happens, including:
- Keep up to date with changes in the law.
- Ensure others are made aware of their responsibilities.
- Use a systematic and documented system of distribution of memos, notices, and so on.
- Make sure you know the standard practice of care in your industry, profession, or trade.
- Ensure workplace practices reflect that standard.
- Ensure your OHS Committee is functioning as required.
Be Proactive. Take active steps to foresee specific risks and promptly act on them:
- Develop, implement, review and update policies and procedures.
- Develop specific policies, procedures and practices aimed at specific hazards.
- Regularly review and update safety guidelines or manuals reviewed, also involving the OHS Committee and any union.
- Carry out orientation sessions for new employees and have them sign off on the guidelines.
- Regularly train employees and supervisors in safety policies, procedures and practices.
- Conduct regular inspections and audits.
- Allocate adequate resources to OHS.
- Ensure adequate supervision.
- Establish a formal procedure for reporting hazards.
Discipline & Enforce Rules. Comply with all applicable laws and discharge all legal obligations and duties under them, have a system in place to require and ensure everyone else does the same, and enforce that requirement. And be sure you maintain written records of disciplinary measures taken – including in relation to supervisors and managers.
Document. Written OHS rules alone aren’t enough. Make and keep detailed written records of all OHS-related activities including:
- Orientation.
- Training.
- Meetings.
- Inspections and audits.
- Accident investigations and actions to address issues.
- Coaching and disciplinary enforcement of OHS matters.
- OHS committee meetings.
- Equipment logs and maintenance records.
- Forms and checklists.
- Medical certificates and first aid records.
- Statistics of accidents and near-misses.
5. When is – and when isn’t – the legal defence of due diligence established?
You won’t prove due diligence if you:
- Didn’t know of a hazard – but you should have known.
- Knew about a hazard but did nothing to correct it, or failed to refer it to someone who could correct it.
- Didn’t follow a rule that was in place.
- Didn’t provide or enforce the use of protective personal equipment (PPE).
- Didn’t enforce safe work procedures.
- Didn’t cooperate with others in the workplace to make a safe work environment.
Here are examples of when the OHS due diligence defence was – and was not – established.
- In R. v. Thomas Fuller and Sons Ltd., the company used a wooden brace as a makeshift winch system to coax a section of concrete pipe into place. A piece from the brace snapped and hit the contractor’s employee, killing him. The Crown charged the company with violating the OHS legislation by failing, as a constructor, to ensure that every part of the project was designed and constructed to support or resist all loads and forces to which it is likely to be subjected. The Court decided the Crown didn’t prove the actus reus– but even if it did, the company established “due diligence”. It acted reasonably both in how it used the winch system and in relying on the manufacturer’s manual.
- In R. v. Swartz, one in the series of “Metron” cases, six workers were returning to the ground on a swing stage. There were only two life-lines available; only one worker attached himself. The project manager didn’t encourage or coerce them to travel together, but he knew life-lines were required by law and an industry standard for workers on such a stage and that there were only two life-lines. He wasn’t aware of the stage’s capacity or whether it was properly assembled or installed. The stage failed and the five unattached workers fell to the ground; four died and one survived with serious injuries. The owner/director pleaded guilty to four counts of violating the Ontario OHSA legislation and regulations and agreed to a personal fine of $90,000. Notably, the project manager was personally charged and convicted of criminal negligence; the corporation was charged and pleaded guilty to criminal negligence.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Occupational Health & Safety Team to discuss how to integrate due diligence into your daily operations.
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