Supervisory due diligence

DOOMED IF YOU DON'T

By Peter Strahlendorf

When a worker suffers an accident, the supervisor can often be charged under the health and safety legislation. What can you do to make sure it doesn't happen to you?

You are the supervisor of a worker who falls victim to a terrible accident in the workplace. A government inspector arrives to investigate. Eventually, the ministry or department of labour decides that you are wholly or partially at fault, that a specific duty spelled out in the legislation has been breached, or that you have failed to take every precaution reasonable in the circumstances. You are charged under the oh&s legislation.

Some months later, the case comes to trial. The prosecution shows beyond a reasonable doubt that a violation of the oh&s legislation took place. But you're not convicted yet, not if you can show, on a balance of probabilities, that you took every precaution reasonable in the circumstances to prevent that particular breach and the resulting accident from happening. This is called the defence of due diligence. If the judge is persuaded that you were "duly diligent" prior to the accident, he or she will acquit you.

Due diligence is a formal legal defence -- you are innocent even though the accident happened. But the judge will not be satisfied with general expressions of sentiment, or with general precautions. The judge will want to hear about specific activities you undertook that were relevant to the prevention of the accident and the breach of the legislation of which you stand accused.

You can give oral testimony, enter documents into evidence and provide witnesses from the workplace to show that you have done "everything reasonable". But if you testify, for example, that the safety rules were reviewed with the worker prior to the accident, you had better be ready with some very specific answers when the Crown Attorney stands up to cross examine you. He or she will doubtless ask precisely when the rules were last reviewed, for how long, with what materials, who was there, whether there was time for study or questions, and whether or not you can give hard evidence of post-training observation, review and reinforcement.

One should note that there are two phases of due diligence. There is due diligence that you should engage in when you don't actually know of a defect or a danger, and then there is the due diligence you should be taking once you know that a hazard exists. As judge Dneiper made clear in the Canada Metals case, preventative maintenance may be due diligence for a duty to maintain equipment when you don't actually know that it is defective; but if a worker has advised you that the machine is not working properly, then all that preventative maintenance activity becomes irrelevant. What then counts as due diligence is taking the machine out of service and correcting the problem.

So you may have been duly diligent for a long time, ensuring workers were wearing protective gear by training, observing, coaching, and so on, but once you become aware that a particular worker is not wearing protective equipment, your due diligence consists of taking action right away to ensure compliance. Your work is never done. You can't rest on your due diligence laurels.

What is the point of thinking about due diligence before you actually need to? Obviously you have to think about it before an accident occurs, or it's no defence. But why are we thinking about it? Do we expect accidents to happen anyway, and are we trying to create a "paper trail" of due diligence activities just to ensure a nifty legal defence? No. The real reason is that due diligence is a means to an end: risk reduction and fewer accidents. If everyone in the workplace is alert to his or her own due diligence activities we should see a large drop in the number of accidents.

We should all be aware that due diligence is a legal defence; but it is also a very high standard of conduct that we want to embrace for other reasons, all ultimately coming back to risk reduction.

WHAT IS REASONABLE?

Due diligence means that you have to take every precaution reasonable in the circumstances. This is a very high standard but not an absolute one. A supervisor does not have to take every precaution in the circumstances, but every precaution reasonable in the circumstances. Supervisors should daily ask themselves what would be reasonable in terms of safety precautions. Using such foresight is the only way to counteract the hindsight that will be applied by the Crown and the judge after the accident.

What does "reasonable" mean? It is a very useful and important word in our legal tradition. We see the word in many legal expressions such as "reasonably foreseeable", "the reasonable person test", "beyond a reasonable doubt", and so on. A common complaint is that what one person thinks is reasonable is not what someone else will think is reasonable. But reasonableness is not subjective; it is objective. What is reasonable is not absolute perfection or anything superhuman. It is a balanced, wise, prudent judgement that is understandable to others.

A neat mental test of what is reasonable is to imagine that a jury of your peers is watching. They are mature, unbiased, experienced supervisors like yourself. What would they think is the wise thing to do in the circumstances in question?

Asking what your peers might do in the circumstances can lead to the use of industry standards, codes of practice and so on. But be aware that it is possible that a particular industry is behind the times in terms of safety. Courts have said that in a particular area or industry group the standards have generally slipped to an unreasonably low level. Doing what the average supervisor is doing can be a mistake. It is far wiser to adopt a "best practices" approach.

The due diligence standard is also very contextual. What is "reasonable" varies with the circumstances and the risk. The greater the risk, the greater the care that is reasonable. Risk is a combination of the probability that something will happen and the severity of the event if it happens. We tend to focus on high probability events, but we should also be looking at high severity accidents.

How can we use the idea of risk to find out what is due diligence? We may all agree that a supervisor's role involves observing people at work. But does this mean a supervisor must stand at the elbow of every worker all day long? Generally not. But when would it be reasonable for a supervisor to be standing constantly at the side of a worker? You guessed it: when a new worker is engaged in a task involving a high risk. Link up a risk gradient with a supervision gradient: greater risk, greater supervision; less risk, less supervision.

SUPERVISOR OR EMPLOYER?

We must also be aware that the situation of the supervisor varies across Canada -- although not as much as some may think. A supervisor could be convicted in different jurisdictions as the employer, as a worker or as the supervisor.

For example, in Alberta, the definition of "employer" includes a person who is a representative of the employer, so a supervisor may be an "employer". In the Peter Keiwit decision, there were several people from the company charged jointly as employers. Incidentally, for oh&s professionals, it should be noted that this was one of the few cases where a safety coordinator for a company was prosecuted (as an "employer"). In this case, a worker had been run over and killed by a gravel truck. The company failed to notify the Department of Labour and disturbed the scene of the accident in an attempt to get traffic flowing safely. The defendants were convicted for these two failures.

In Ontario, there is a specific definition of "supervisor" and a specific section of the OHS Act that lists supervisor duties. The definition is so broad that a worker could have several supervisors, both laterally across the organization and vertically up the organization.

In Saskatchewan, the supervisor could be prosecuted as a worker, since the workers' duties refer to "every worker while at work shall take reasonable care to protect ... the health and safety of other workers who may be affected by his or her acts or omissions." In addition, the Saskatchewan regulations have a separate definition of supervisor and have specific duties for supervisors.

There has been a lobbying campaign from employer groups to have supervisory duties removed from legislation. It is argued that the team concept makes the supervisor redundant. While the team concept presents some challenges, there will always be a need for supervision for safety. It has something to do with human nature -- if there are short-term benefits to taking safety shortcuts, people will be tempted to take them, no matter how well trained they are. An egalitarian, non-hierarchical team will be tempted to conspire together to take the shortcuts (or overlook them). Supervisors do many things, but being a fail-safe device for avoiding safety shortcuts is one of the most important.

REASONABLE MISTAKE

One branch of due diligence has to do with a "reasonable mistake of fact". In the Graydex case, the supervisor believed a trench was too shallow to require timbering to shore up the sides. The walls collapsed and killed a worker. The supervisor was acquitted because the judge believed the supervisor had an honest and reasonable belief in a set of facts, that, if true, would have meant that a breach of the law had not been committed.

But it would be wise not to hang one's hat on the reasonable-mistake-of-fact defence. The Rio Algom case made it clear the defence is rather narrow. In this case the company used the defence after a worker was killed when a defective gate swung into the path of an oncoming train in a mine. The court said you can't base the defence on the unforeseeable and peculiar way in which an accident unfolds; the issue is the existence of the original hazard. As well, you can't argue blissful ignorance of whether the hazard exists or not; you actually have to believe the hazard is not there. Given that due diligence requires inspecting, investigating, following up on complaints, and being proactive, when is it exactly that one's belief in a non-hazardous workplace would be reasonable? You would clearly be off the hook for a hidden, latent defect in a device that could not have been discovered in the workplace. Otherwise, don't count on this defence too heavily; and certainly don't think that purposely turning a blind eye to safety problems will be of any help in bolstering your defence.

CONTRACTORS

In many jurisdictions, there is little express distinction in the act between a supervisor's own workers and the employees of a subcontractor. One should check definitions in the act carefully to see if there is reference to the employment relationship or not. If a supervisor is to be responsible for the safety of a subcontractor's workers who are present temporarily, then due diligence is often restricted to ensuring that such contract workers are made aware of any hazards, of company-specific safety rules, and that any obvious breaches of the regulations are prevented. It would be unreasonable to hold a supervisor accountable for failing to do extended WHMIS training for someone present in the area for an hour. In some jurisdictions it is clear that a supervisor would not be liable for skilled work within the complete and direct care and control of the subcontractor worker. This makes sense. The supervisor's due diligence activities would extend to the worker's surroundings, which are in the control of the supervisor. In most provinces, the situation is muddy and the fear is that supervisors will be held accountable for enforcing safe work procedures by subcontract workers engaged in work that is mystifying to the non-expert supervisor.

Some supervisors believe that since workers have responsibility and rights under oh&s legislation, they are in a position to waive their rights or assume the risk. This is not so. In the Tiger Wrecking Ltd. case, a supervisor told workers to leave a demolition site. One worker said, "That's okay", but didn't leave, and was later injured by a falling piece of concrete. The judge said the supervisor had not taken reasonable care because he knew the worker didn't leave when told to do so. Reasonable care does not mean advising of risk and then letting the worker deal with it. In the Stelco decision, the company told subcontractor workers not to go inside a large machine they were working on because it was dangerous. A worker agreed along with the others, but then went inside and was flattened when the machine came on. The court said that warning workers instead of using a lockout procedure was not reasonable care.

There are times when a judge will not even get to the issue of due diligence on the part of the supervisor because the judge is not convinced that the supervisor had sufficient control to be a supervisor. In the Patrick Harrison decision, two miners were drilling holes. They drilled a hole that already had dynamite in it, and one of the workers was killed in the explosion. The company was convicted but the supervisor was acquitted. The supervisor was temporarily replacing another supervisor on vacation and had only been in the position for five days. The supervisory duties were simply added on to his pre-existing duties. The judge said the lack of supervision was due to an insufficient number of supervisors, not a lack of care on the part of the accused.

A completely different conclusion was reached in the Alston Moor case. The inspector found workers on a construction site in a residential subdivision wearing canvas shoes and no hard hats. The supervisor was found guilty of failing to ensure that workers were wearing their protective devices. The supervisor had responsibility for workers at 50 building sites. The judge said he had been "given such a large responsibility it was almost impossible for one man to be on top of everything... However, Mr. Ricci accepted that responsibility." This decision should not make supervisors happy. Let's guess what would have happened to Mr. Ricci if he had refused to accept the responsibility. The case seems to run counter in spirit to the Patrick Harrison case.

The inspectors should be searching for someone higher up the organization when lack of supervision is not really due to a lack of effort by a supervisor, but is due to an insufficient number of supervisors. Adequate staffing is part of the reasonable care of senior people. Mr. Ricci had no control over the number of supervisors hired. The judge might have enquired as to the supervisor's efforts to advise senior people of the need for additional supervisors, but he didn't get that far. Due diligence would normally include "tossing the hot potato" when a problem is beyond the authority of the person who recognizes the problem.

FAILURE TO BE CREATIVE

Where supervisors are under a "general duty" (or "every reasonable precaution") clause, extra effort must be taken to analyse the specific steps that must be taken in the circumstances. A general duty clause is a duty to be proactive, creative and have skills at identifying and assessing risks in order to fulfill general duty clauses.

In the Lake Ontario Cement case, the worker went inside a machine that handled newly made bricks on pallets because of a jam. The machine was turned off before he went in but it was not locked out. It came on while he was still inside and the worker was injured. The company was convicted for its failure to ensure lockout. The supervisor was convicted under the general duty clause because he failed to instruct, inform and train worker about lockout procedures. Note that there is no express duty in the legislation for supervisors to do lockout training; the need for such training fell under the "all precautions reasonable" clause.

We can see supervisor due diligence operating at three levels. First, depending on the jurisdiction, the supervisor may have duties that require him or her to enforce the regulations -- a regulation dependent duty. Reasonable care means matching the work with the regulations and then engaging in training, observing, coaching and disciplining such that the regulations are followed.

Second, the employer may have safety procedures, rules and precautions that cover the hazards that are not addressed specifically by the regulations. If the supervisor has a duty to enforce the employer's safety procedures, then they form a part of the required due diligence. It is the source of the rules that differs, but we are also looking at workplace-specific hazards when we move from the regulations to the employer's safety manual.

Third, where the legislation has a general duty clause for supervisors, he or she may be held liable for failing to be creative; for failing to identify and address a hazard that was not covered by the regulations or by the employer's safety manual. Due diligence here would involve engaging proactively in various risk assessment and control activities. Inspections, investigations, task analysis, and "tailboard conferences" are some of the many techniques supervisors should be able to engage in under their general duty clauses. Due diligence is definitely not mere regulatory compliance, and supervisors are not merely passive rule enforcers.

DETERRENCE

The purpose of a prosecution under oh&s legislation is not the same as the purpose of a prosecution under a true criminal statute like the Criminal Code of Canada, in which punishing wrongdoers is a major objective. The main purpose of a regulatory prosecution is deterrence -- to motivate the defendant (and other people who see what happened to him) to change behaviour from a substandard level to a proper, higher level. This will result in a reduction of risk in the workplace. So if a judge sees that a supervisor was duly diligent prior to the accident, there is no point in a conviction because the supervisor is already taking every precaution reasonable in the circumstances -- the supervisor cannot be deterred further. Since there would be no reduction in risk as a result of a conviction, why convict? One can see how a judge might convict for the purpose of general deterrence of observers ("to encourage the others"), but such general deterrence should be a side benefit to specific deterrence.

Suppose the supervisor turns over a new leaf after the accident and begins, for the first time, to take oh&s seriously. Will such post-accident due diligence be useful as a legal defence? No. Only pre-accident due diligence makes a supervisor innocent. But post-accident due diligence can be important for two other reasons. It is possible that the Crown may decide not to charge the supervisor if post-accident due diligence is demonstrated. The rationale is that the supervisor has been deterred, so what is the point of a conviction? The role of the inspector is to inspire risk reduction, not to fire lightning bolts of moral retribution. But the inspector has to be convinced that the change is real and is permanent. Second, a judge may convict, but may give a much reduced penalty, again on the grounds that the supervisor has already been deterred and needs little more than a small shove in the right direction.

There is no all-purpose list of "ten steps to due diligence" for any workplace party. There are some obvious activities that everyone should be doing. But so much of what is reasonable care is highly workplace-specific. Increasingly, the courts are not happy with generic activities -- a general safety training course that took place two years ago at a different location, or a nondescript safety brochure cribbed from someone else. They want to see safety activities that are focused on the day-to-day work.

It is not true that supervisors are "doomed no matter what they do", as one supervisor commented after hearing a corporate lawyer lecture on due diligence. You must live up to a standard of care that is reasonable in the circumstances. Due diligence is common sense on its best behaviour, so to speak. If everyone in the workplace is thinking about taking reasonable care, risk will be greatly reduced and we will go for very long stretches of time with no accidents -- and no charges under the oh&s legislation.

Peter Strahlendorf B.Sc., LL.B., S.J.D., (C)OHS, CRSP, is with the school of environmental health at Ryerson Polytechnic University in Toronto, Ont.

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