The proof of due diligence by a defendant, on a balance of
probabilities, is fact dependent. A recent Ontario trial decision
provides a useful overview of the framework for a finding that due
diligence has been proven.
The charges stemmed from a tragic 2012 incident in which a
worker suffered a serious injury to his foot, which had to be
The defendant company was a manufacturer of machined metal
products. It was in the process of manufacturing six large
cylindrical spindles for its customer's massive trucks, which
were used in the oil industry. Each spindle weighed about 10,000
pounds and was four to five feet long.
The manufacture of the second spindle was almost completed when
the defendant's customer requested that the groove located at
one end of the spindle be ground down. This had to be done by hand,
since the spindle was already machined.
The task was given to a seventeen-month employee, who was
relatively inexperienced in acting as a "deburrer," one
whose job was grinding down any burrs or rough edges on the
The spindle which required modification was lying horizontally
on two stands, but had to be rotated to be worked on. The worker
made an attempt to rotate the spindle with a piece of rebar that he
attached to an overhead crane. When he attempted the rotation, the
spindle fell off the stands and onto his foot.
There was some disagreement in the evidence at trial as to the
instructions given to the injured worker by the person responsible
for supervising him. The injured worker testified that he had been
told to "prep and rotate" the spindle. This was denied by
the supervisor. The court found that the prosecution had proven the
elements of the offence, namely that the employer had failed to
provide information, instruction and supervision to the worker for
the safe movement of the spindle. However, the court also held that
the company had made out a due diligence defence.
The worker had been given training with respect to general
safety measures, as well as specific training for overhead cranes.
There was no training provided with respect to the rotation of the
product, such as occurred in this case, nor were there any specific
procedures in that regard. General safety instructions were clear
that equipment was not to be used for anything other than its
The court stated that an employer cannot "merely point to
the worker's negligent, careless or even reckless conduct"
in order for it to succeed on due diligence. The test was
reasonable foreseeability. The court found that it could not
conclude on the evidence that the worker had been instructed to
rotate the spindle. Significantly, the court found that the
worker's attempt to rotate the spindle was, to his knowledge
and as he testified, contrary to his training. The court held that
there was no requirement that a worker be "contemporaneously
supervised at all times."
The employer was acquitted.
What comfort can employers take from this decision? Not all that
much, since as stated at the outset, due diligence is so fact
dependent. However, this is one example, and there are others, that
demonstrates that prosecutions can be successfully defended on the
"right" facts. Such facts include that an employer
carefully considers hazards which can befall a worker and takes
steps to mitigate against those hazards. The right facts also
require the right witnesses, namely those who can provide evidence,
including documentary evidence, of the measures taken by an
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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