May 2, 2016
“Due diligence” is a legal defence to many charges under occupational health and safety (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?
There are both criminal and “strict liability” OHS offences; “due diligence” describes a legal defence to a “strict liability” offence. Criminal conviction typically requires authorities to prove, beyond a reasonable doubt, that the accused both committed the physical act (actus reus) and had the mental intent for the offence (mens rea). “Strict liability” conviction requires authorities to prove beyond a reasonable doubt only that the accused committed the physical act; the accused can then avoid conviction if it proves, on a balance of probabilities (50% or more), it exercised “due diligence”: took all reasonable care that a reasonable person would have taken in the circumstances. “Reasonable care” is a variable standard that depends on the particular 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; and the extent to which underlying causes of the offence are beyond the accused’s control.
2. Why are due diligence and a culture of workplace safety so important?
Because they help ensure compliance with legal obligations under OHS laws and establish a legal due diligence defence in the event of an OHS charge. They also help accomplish the following that together improve the 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; and maintain public confidence and increase competitiveness.
3. Who has obligations under OHS laws and what are they?
OHS is a shared responsibility: companies and their directors, officers, managers, supervisors and workers personally all have OHS obligations (and liabilities); it’s critical that all read, understand and comply with those that apply. Section 217.1 of the Criminal Code applies to everyone with authority to direct how another person does work or performs a task – including corporate entities and individuals – and imposes the obligation to “take reasonable steps to prevent bodily harm to that person or any other person arising from that work”. OHS legislation and/or regulations typically define and impose various obligations on owners, employers, contractors, subcontractors, suppliers, supervisors and employees:
4. Practically, how do I establish the “due diligence” defence?
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:
5. When is – and when isn’t – the legal defence of due diligence established?
Here’s a court decision to illustrate when the due diligence defence in the OHS context is 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”:
Contrast this with a recent OHS case that sends a clear message: OHS obligations are real and the consequences of failing to meet them grave. In the “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 there were only two life lines and life lines were required by law and an industry standard for workers on such a stage; 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 company, and each of its owner/director and the project manager personally, were charged with four counts of criminal negligence causing death and one of criminal negligence causing bodily harm under Criminal Code section 217.1:
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Occupational Health & Safety Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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