Among the defences employers can rely on for infractions under
the Occupational Health and Safety Act is that of due
diligence. Due diligence is a well-known term, but what does it
really mean? Because fault on the part of the employee is not a
The courts have developed five criteria for a successful due
diligence defence by the employer:
Ensuring that employees have the appropriate safety equipment
before leaving for their job site or work station;
Meeting with foremen to make sure they understand the
importance of safety instructions and the consequences of not
Supervising the employees and/or making check-up visits to
their job site or work station;
Issuing oral and then written reminders if safety instructions
are not followed;
Issuing warnings and, if warranted, imposing disciplinary
measures for not following safety instructions.
One line of recent cases refers rather to the employer's
duties of foresight, efficiency and authority.
The duty of foresight entails identifying the risks inherent in
the work and properly managing them. The employer must analyze each
facet of the work to be performed and ensure that the employees
have the necessary level of competence and information to perform
The duty of efficiency entails the concrete application of
measures to mitigate the targeted risks. For example, the employer
must provide employees with appropriate safety equipment, see that
the accident prevention program is prominently posted, and ensure
that the work is adequately supervised.
As for the duty of authority, it consists of the employer's
obligation to take action against employees who do not follow
safety instructions. The employer cannot tolerate any such lapses
and must impose sanctions for non-compliance.
Since the year 2000, the CSST has had a zero-tolerance policy in
place for certain work such as work performed at high elevations,
in excavations and trenches, and with material containing asbestos
Be sure to take appropriate measures, as CSST fines can reach as
much as $300,000!
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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