April 15, 2010
By Robert Kennaley
McLauchlin & Associates

Robert KennaleyIn previous articles, we discussed the obligations imposed by the Occupational Health and Safety Act on construction industry participants in Ontario. It is worth revisiting, and focusing in more detail on the “due diligence defence.”

Generally speaking, an employer or constructor who is charged with an offence in relation to the conduct of an employee, or worker beneath him, will have to establish due diligence in all of the circumstances to avoid a conviction.  

Importantly, employers and constructors are responsible to take every precaution within their control, and otherwise reasonable in the circumstances, to ensure that the Act is followed by those they are responsible for. The courts have made it clear that it is no defence to say that someone else involved in a management position in the overall structure of the project had a greater or more direct degree of control over a worker who fails to comply.  

In R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, the Supreme Court of Canada held that the Crown need only prove that the prohibited act occurred and that the onus then shifts to the defendant to establish reasonable care on a balance of probabilities. With respect to the due diligence defence, the court has confirmed that an “accused may absolve himself on proof that he took all the care which a reasonable man might have been expected to take in all the circumstances or, in other words, that he was in no way negligent.” (R. v. Chapin (1979), 45 C.C.C. (2d) 333).

As another court has stated, the defence is required to show that you “exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system.”  (R. v. Bata Industries Ltd. (1992), 9 O.R. (3d) 329 (Ont. Prov. Div.).

In essence, while establishing due diligence does not require super-human or unreasonably expensive efforts, it does require you do everything reasonably possible to ensure the Act is not breached.  London Excavators & Trucking Limited (1998), 125 C.C.C. (3d) 83 (O.C.A.) is a case which helps us understand this.  In this case, an excavation subcontractor was told by the general contractor that locates had already been obtained. Although the subcontractor believed, and relied on this advice, locates had not been obtained. The subcontractor struck a hydro-line and was charged under the Act.  

The subcontractor argued that it was reasonable to rely on the contractor’s advice. The Ontario Court of Appeal, however, focused on what the subcontractor could have done to ensure that the prescribed measures and procedures had been carried out in the workplace and the subcontractor was convicted.

The court stated that the subcontractor could have insisted on seeing the site plan, on which (as turned out to be the case) the hydro duct was shown; he could have insisted on seeing a locate certificate issued by the utility; if (as turned out to be the case) there was no such certificate, he could have halted work until the utility’s representative had attended at the site and done the locates; or he could have ordered hydro locates for the area in which it was expected to excavate.

Accordingly, toward establishing due diligence, contractors and subcontractors should consider whether or not what they are doing is enough, in the circumstances. If a court can find that something else reasonably could have been done, a conviction might result.  

Have a policy in place

It is also important to understand that due diligence requires the employer and constructor to have a policy in place to address the risk in question, a system in place to implement that policy, and to have a system in place to make sure the system is being followed. Toward determining whether or not the defence would apply in Ontario (Ministry of Labour) v. Modern Niagara Toronto Inc. [2006] O.J. No. 3684 (Ont. Prov. Ct.), for example, the court expressly examined whether or not the “defendant exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking all reasonable steps to ensure effective operation of the system.”

Further, it should be understood that a strong record of compliance with the regulations under the OHSA and a strong record of health and safety in general will not in and of itself suffice to prove due diligence.  Also, a general policy that a certain procedure will be followed does not satisfy the requirements. The court in R. v. Abra Building Movers Ltd. (1989), 2 C.O.H.S.C. 165 (Ont. Prov. Ct.), for example, held that “vague policies” and “common-sense requirements” did not constitute all reasonable precautions.

Procedures in writing

Similarly, verbally telling employees to follow safety procedures, holding meetings and sending out materials have been found to be insufficient for the employer to discharge its duty to exercise due diligence. This was the finding in St. Lawrence Cement Inc., [1993] O.J. No. 1442 (Ont. Prov. Ct.), where the Court stated at para. 32: “It is not enough for the accused to orally order the workers to conform to certain safety procedures and send them pamphlets that repeat and reinforce that order. If that were so, the accused could fulfil their obligation under the Act by holding meetings and distributing pamphlets.”

What is required over and above these steps, the courts have suggested, is a system which is put in place toward ensuring that the policies and procedures are followed. This means a system of checks and balances to follow up on workers and to impose strict consequences whenever it is determined that policies are not being followed.

The courts do recognize that the standards they set are high. Nonetheless, it is clear that employers must be proactive in ensuring compliance with the Act. Generally, then, establishing the due diligence defence will require a written policy which addresses the particular issue in accordance with the Act’s requirements, along with documented evidence that the policy was reviewed regularly, was reasonable, was stressed in discussions with workers and was being followed.
Robert Kennaley practices construction law in Toronto and Simcoe. He speaks and writes regularly across North America.  He can be reached for comment at 416- 368-2522, or at kennaley@mclauchlin.ca. This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation.  Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.