Canada: The Legal Defence Of Due Diligence: Top 5 FAQs

Last Updated: May 19 2016
Article by Dominique Fontaine and Lucie LaBoissonnière

"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:

  • A general obligation on each to take every reasonable precaution to ensure workers' (or their own) health and safety, or some variation of this wording.
  • More specific duties on each typically relating to compliance with the laws, OHS programs, policies and committees; equipment and tools, including provision, maintenance and inspection; instruction and training; supervision; and record-keeping.
  • Detailed duties and obligations in relation to specific types of work, industries or workplaces.

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:

  • Commit to building a culture of safety, including inviting and allowing employee participation and allocating adequate resources to OHS.
  • Be Aware. Ignorance of the law is no defence. 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.
  • Comply. 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.
  • Be Proactive. Take active steps to: foresee specific risks; conduct regular training; develop, implement, review and update policies and procedures; conduct inspections and audits; and promptly act on risks that come up.
  • 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, and statistics of accidents and near-misses.

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":

  • The employer acted reasonably: if proper alignment were maintained, the resistance the wood provided far exceeded the force required to seat the pipe; the winch system was designed and constructed to be, and were, used by experienced pipe fitters under the supervision of a respected and experienced construction supervisor, with the objective of achieving "more stability and flexibility" and no plan to apply greater amounts of force; and the winch system, including the brace, complied materially with the standards the concrete pipe manufacturer identified and the industry long and successfully relied upon.
  • Installation problems: the irregular shaped section used didn't make it unreasonable to rely on the manufacturer's manual promising the pipe could be pushed together; the promise failed, not the device. Similarly, it would be reasonable for the company to consult with engineers, put gauges on the device or use steel instead of wood, but a reasonable person wouldn't, in the circumstances, have been expected to have an engineer design the installation process or calculate forces.

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:

  • The owner / director pleaded guilty and agreed to a personal fine of $90,000; the court convicted the company and issued it a $750,000 fine.
  • The courtconvicted the project manager concluding there was a patent violation of OHS regulations and the industry standard. His failure was to take reasonable steps to prevent the workers from doing something they apparently undertook voluntarily, but knew they shouldn't do, was enough to breach s. 217.1. The courtsentenced him to 3½years of imprisonment to denounce the conduct and deter others from breaching their s. 217.1 duty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions