The art of due diligence in workplace safety: Don’t learn the ‘right’ way the ‘hard’ way

A signaller in Ontario was killed in an accident in 1997. The resulting legal case, from 2002 and available on CanLII, showed how courts interpreted health and safety legislation. Photo: Adobe Stock

We have all experienced it: We hear something in the news or through the grapevine that send chills up our spines, and plants fear into our very cores.

A workplace incident or accident has occurred. A horrific and tragic sequence of events led to a terrible mishap, and a worker — or workers — have been injured. Or worse, have died. Perhaps all workers were thankfully safe but there is significant damage to property, the result of some freak event. Business owners everywhere shutter at the thought: “What if this happened to me?”

Employers spend time and resources making sure they are compliant in the law. The hassle associated with a visit from authorities that results in orders or fines is something they wish to avoid at all costs.

Compliance versus due diligence

It is expected that employers care about every single worker and want to do whatever it takes to keep them safe. However, the protection of workers is a byproduct of health and safety compliance, and only one of the reasons that a good health and safety program is important to a business. For employers, they also have a priority to mitigate the costs associated with injuries and illnesses, including loss of production, high turnover, and property damage.

Poor health and safety practices cost money, money of which would be needlessly spent if only they could avoid such incidents.

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So, what is the difference between compliance and due diligence? Well, legislation sets out the minimum standards that all employers must follow. But, if you have read that legislation, some of it is pretty ambiguous.

For example, Ontario’s Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Section 25(1)(a) states that, “An employer shall ensure that the equipment, materials, and protective devices as prescribed are provided;” leaving room for interpretation that can fit a multitude of businesses and industries.

I may purchase a piece of equipment for my company, get it inspected before use, train my workers based on the user manual and provide any personal protective equipment the manufacturer recommends. I have met my obligations based on the standards in the legislation, but is that enough?

Due diligence is defined differently under the law. It is everything that the employer could have reasonably done to prevent or avoid an incident. “Reasonably” is another ambiguous term, but there is a place where the standards for what constitutes reasonable can be found.

When an incident of any kind is discussed in a court of law, or through an adjudication before a board depending on the jurisdiction, the decision that is made creates a precedent. Knowing the precedent will help a business understand what has already been decided as “reasonable” due diligence.

This is referred to as “case law,” and once you know what a company should have done, you can be proactive and create the due diligence you need to protect your business from a similar occurrence.

Online, free legal database

A great tool for researching case law is the database called CanLII.org. It has every public record in Canada that has been processed through a legal system, and can be filtered to find the jurisdiction and legislation you need to start reading and understanding the case law that applies to your industry.

For example, if I want to know about due diligence related to that section I just mentioned, I use the jurisdiction filters and type in the act and section I referred to.

The first result in my search is a great example of understanding due diligence. In Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA), the employer was charged under the OHSA Section 25(1)(a) for failing to do everything reasonably possible to protect the worker.

In this case, a worker was killed while both acting as a signaler and operator of a piece of heavy equipment. The employer was charged in the worker’s death, and this decision came through an appeal from the Crown which was allowed, based on circumstances, and the additional standards mentioned in this case found in the Construction Regulations, s. 106(1): A signaller shall be a competent worker and shall not perform other work while acting as a signaller. O. Reg. 213/91, s. 106 (1).

What this tells me is that it has been decided that the employer is responsible for ensuring there should always be a person working as a signaller, separate from the person operating the heavy equipment. This can apply to a number of scenarios where signaling is necessary in a variety of industries, such as shipping and receiving where signaling may be required to guide the driver of a big rig into a dock or bay.

Furthermore, the case goes on to state at paragraph [16]: The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided.

This important piece of information has been quoted in more than one hundred similar cases and speaks to the heart of due diligence.

Due diligence often the only defense for employers

Due diligence in a court of law is often the only defense an employer has, and it generally isn’t until we find ourselves before judgement that we get a clear look of all the things were not done correctly.

We will see every record, every part of our training programs and employee knowledge verification, worker testimony, and the entire company history called into evidence. Do your maintenance records show that a proper maintenance schedule was followed?

Was equipment inspected for use the day in question and every day for the previous year? How did we verify that the worker or supervisor was in fact, “competent?” Where is the proof that due diligence was taken?

Internal auditing to ensure that anything that could be entered into evidence, is crucial to proving due diligence and verifying that your health and safety programs are implemented in a manner that proves the company did everything “reasonably possible.”

Where the law only provides the minimum standard, due diligence is the best practices, specific preventative measures that cater to your business and industry, and is backed by assessments, research, consultation, and past precedent to ensure we have learned from the mistakes made by ourselves and others.

We cannot make assumptions that everything we are doing is enough, because it could very well be your business that makes the news for something terrible, and it when it does, it will already be too late.

The due diligence we already practice is not a guarantee either, and that is why it is important to continuously assess and improve upon your health and safety programs, so that instead of wishing it didn’t happen to you or your company, you can have the peace of mind to say, “that’s a shame, I can only imagine.”

Amanda Sharman is the food safety compliance and regulatory specialist at Del Fresco Produce Ltd. in Kingsville, Ont.