Canada: OHS Due Diligence: If There Isn't a Record, Did It Even Happen?

Last Updated: August 21 2019
Article by David S. Reiter

Much has been, and continues to be, written about the corporate due diligence defence in Occupational Health and Safety Act prosecutions. Scores, if not hundreds, of articles have been written both about what it means and how courts will assess due diligence once it has been raised.

Obviously, these topics are important and businesses that employ workers benefit greatly from them. Unfortunately, one point that is often missed in the mix is the absolutely critical role that record keeping plays in establishing due diligence. This article aims to remedy that.

The point is made by numerous cases, including the following relatively recent examples: Ontario (Ministry of Labour) v. Algoma Tubes Inc.1 and R. v. Wal-Mart Canada Corp.2

The Algoma Tubes decision involved a relatively straightforward issue. The company had been charged with failing to guard one of its machines contrary to the requirements of the Industrial Establishments Regulation. It chose to assert a due diligence defence at trial, at least in part, by pointing to a series of inspections that the Ministry had conducted some seven to nine years earlier. These inspections had been part of a larger "guarding" project that the Ministry had conducted by attending at the facility to identify guarding deficiencies and to direct necessary fixes. At the time, the machine that became an issue in the case had been in the facility without a guard. It appears that the defence wanted to argue that the company's diligence was reflected in the fact that even the Ministry inspectors themselves hadn't caught the problem when they were looking for it.

Part of the way in which the company sought to establish its defence involved an application for the disclosure and production of the Ministry's inspection records for the facility from 2007 and 2009. The Court however denied the application, finding that (i) the records were not first-party disclosure (i.e. fruits of the immediate investigation before the Court), and (ii) because so much time had passed during which several elements of the facility had changed (including non-guarding related aspects of the machine in issue), the records were not obviously relevant.

From the decision, it appears that the defence was left without some of the key evidence it wanted to establish its defence.

The Wal-Mart case makes the same point, but from a different perspective. It also involved the prosecution of an offence under the Industrial Establishments Regulation, but it didn't involve a disclosure application. The facts were as follows: a worker had been using a manual skid jack to move products. In the course of doing so, he backed into an empty skid that had been left in one of the warehouse's aisles. He fell, hit his head and died three weeks later. It was determined that the accident contributed to his death. The Ministry of Labour charged the company with failing to keep the aisle free of obstructions and hazards.

In asserting its defence, the company pointed to a sweeping program that it had put in place, and argued that the program demonstrated that it had diligently attended to obstructions and hazards in all areas, including the aisle ways. However, the Court didn't accept that the company had been duly diligent. Its decision centred in large measure on the fact that the company couldn't produce logs to show that the sweeping program had been followed on that day in that area. These missing logs undermined the defence, and the company was convicted. The conviction was then later upheld on appeal.

Both of these cases demonstrate that record keeping can be central to a business' ability to defend itself.

Consider the difference it would have made in the Algoma case, both to the application and the trial, if the company had kept accurate records of all Ministry of Labour attendances at the premises. If records had been kept, and they had included event forms that detailed times, places, people and actions (including follow-up notations), the company would have been able to establish what happened with certainty, and that the Ministry's records were obviously relevant. That would have made all the difference in the world to the defence.

A similar point is made in the Wal-Mart case. Had the sweep program logs been available they would have shown that the company not only had a program to address the hazards, it also had effectively implemented the program. Without the records, the Court looked at the situation and concluded that it was as if the efforts hadn't even been taken.

Having recognized that record keeping is critically important to a company's operations, we recommend that businesses take, at minimum, the following three steps:

  1. Convene department meetings at which managers can report on what has happened in their department, and what will be happening. This information can be used to identify events that are out of the ordinary, and what documentation needs to be created.

  2. The meetings can also be used to ensure that records are being kept of routine events that reflect the business' implementation of its policies. Managers should run through a checklist of the documentation that their reports are supposed to be creating. If records have been made, managers should make sure they have been filed in the appropriate place. If the records haven't been created, the mistake will have been caught, hopefully while events are still fresh in everyone's minds – and it can then be corrected.

  3. Lastly, managers should conduct a periodic audit to ensure that record creation procedures are being followed. This can be as simple as adding a line to the monthly or quarterly inspection list.

At the end of the day, the key is to find a way to ensure that your business is recording all of the positive things it has been doing. The records will help the business to protect itself should there be an incident. As the highlighted cases illustrated, the absence of records can leave people asking if anything was even done at all.

1 2019 ONCJ 300

2 2017 ONSC 6726

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

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

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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 (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

To Use 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.


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.


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