Canada: Due Diligence – A Brief Refresher

Last Updated: May 23 2019
Article by Cynthia R. C. Sefton

"It's not enough that we do our best, sometimes we have to do what's required."

- Winston Churchill

May 5th, 2019 marks the start of what is now called Safety and Health Week, also known as North American Occupational Safety And Health Week, (NAOSH). It is a good opportunity for employers, supervisors and workers to take time to assess whether their policies, procedures, training, monitoring and enforcement regarding health and safety constitute not only their "best," but also what is required.

In any provincial regulatory trial, once the prosecution proves the actus reus (the commission of the offence as charged) beyond a reasonable doubt, in order to escape liability, a defendant must prove that it, he or she was "duly diligent" on a balance of probabilities. Did the defendant take all reasonable precautions to prevent the risk of harm? This requires "... a high standard of awareness and decisive, prompt and continuing action," (R. v. Courtaulds Fibres Canada, 1992).

Next, can you prove this on the evidence? Even if all the right things were done, or the wrong things were not done, if this is not capable of being proven, the defence will not succeed. As a general principle, if you cannot prove it, it did not happen.

Your business steps for having and proving due diligence:

1.         Have a policy. This is the bare minimum. Update it from time to time, so the one posted on the wall does not acquire too much dust. However, as one court put it, "... a wonderful policy that is not really implemented is not due diligence, and it is really of no use." (R. v. D & J Isley and Sons Contracting Ltd., 2019 ABPC 9. )

2.         Management, supervisor, worker/union buy in. Without this, the policy is just words. Make serious efforts to solve significant disagreements in whatever forum best suits the issue, with litigation only as a last resort.

3.         Take the time to identify the risks, both the general and the specific. Do that regularly and involve not only management and safety professionals, but also the people who actually perform the task. There can sometimes be a gap between what senior management believe is happening in the factory or in the field and what is really happening. You do not want to find out about the gap after the accident. Know that after an accident, the risks that are reasonably foreseeable (what you should or should not have done) will be assessed with the benefit of hindsight. Investigators, lawyers and courts will inevitably spend days, weeks, months and even years looking at something that occurred in a matter of minutes.

4.         Once the risk is identified, decide what you are going to do about it, if anything. There may be valid reasons for deferring on an issue, but have a plan identified, rather than just ignoring it. Also, a great deal of time and money can be spent on quantitative risk assessments. Do not forget the usefulness of the experienced qualitative assessment and the exercise of common sense and good judgment. You cannot do everything in one day, even with enormous resources. Deciding not to do something is usually better than repeatedly kicking the can down the road.

5.         Start implementation of the solutions. This involves real procedures (again draw on those who perform the task), real training, real supervision and monitoring and fixing any glitches that may arise. Be aware that the defence of "but we have procedures for that," is only as good as the supervision, monitoring and enforcement that attach to those procedures and which can be demonstrated on the evidence.

6.         Start over again.

CONCLUSION

It is worth repeating that what is written in manuals and taught in training (often, in today's world, in an online environment) does not always match what is done by the workers. In order to demonstrate due diligence, you must not only have clear and explicit procedures, but sufficient training and supervision, monitoring and auditing of actual practices. Any non-compliance must be addressed at the time; do not let it go "just this time." When that is finished, the company should start over and have an ongoing evaluation, whether for its direct employees or its contractor workers. The ultimate decision makers need to know and address what is done in the real world. The best of intentions is not enough. "To be meaningful, ... (policies) need to be actuated through human beings. Trust in workers that instructions are followed, and assumptions that certain actions have been taken, do not constitute due diligence by an employer," (R. v. D & J Isley). In other words, doing your best is insufficient, do what is required.

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
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please 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