‘Want to avoid liability for occupational health and safety violations? It’s simple. All you have to do is obey every law 100% of the time.

What? You’re not perfect? Don’t fret. You have another option. It’s called due diligence. Just show that you took all reasonable precautions to follow the laws and protect workers and you won’t be held liable for the OHS violations you commit.

At least that was the theory the Supreme Court of Canada had in mind when it decided the famous R. v. Sault Ste. Marie case in 1978, see, http://www.canlii.org/en/ca/scc/doc/1978/1978canlii11/1978canlii11.html.

But making the due diligence case has gotten progressively harder. Every year, Robin and I assemble all the Canadian OHS cases where a court ruled on due diligence into a Due Diligence Scorecard in Safety Compliance Insider. (To see the 2008 version, http://www.ohsinsider.com/insider-top-stories/the-insiders-4th-annual-due-diligence-scorecard-2). “Losers” usually outnumber “winners” about 10 to 1. It’s gotten so bad that some experts have proclaimed that due diligence is dead.

So when a company actually wins a due diligence case, we get pretty excited. That’s what happened on July 27.

Meddling Supervisor Pays With His Life

A crew is installing a large diameter concrete cased pipe at an Ottawa construction site. The crew is mixed—about half of the workers come from the contractor that dug the excavation and the rest from the subcontractor hired to do the installation. They’re using an industry approved pulling method where 4 guys apply equal pressure to a different point on the wooden frame holding the pipe.

Things are going along fine and the pipe is almost seated when the subcontractor’s supervisor tells one of the crew members to apply more pressure to the winch. The supervisor isn’t in charge of the work; he’s at the site just to verify that the work is done and complete timesheets so that the sub can bill the contractor. But the winch operator follows the supervisor’s instructions. The extra force causes the wooden frame to break. The pipe falls on top of the supervisor, crushing him to death. Nobody else is hurt.

Court Says Contractor & Subcontractor Showed Due Diligence

The Crown charges the contractor and the sub with a bunch of OHS violations, including “failure to take every precaution reasonable in the circumstances for the protection of a worker.”  But the court buys their due diligence defence and dismisses the charge. Reasonable precautions mean guarding against foreseeable risks, the court explains, and this accident was unforeseeable:

• The method the crew was using was generally accepted as safe by the industry and had proven safe many times in actual experience;
• The accident didn’t occur because the method was flawed—in fact, the pipe was just about in place—but because the supervisor ordered the crew to deviate from it; and
• It was totally unforeseeable that a supervisor sent to the site to do timesheets would meddle like this.

R. v. Black & McDonald Ltd., Court File No. 07-30006-01-02, Ont. Super. Ct. of Justice, July 27, 2009

Due Diligence Lessons

OHS laws demand reasonable efforts, not perfection. The problem is that the bar for proving “reasonable” has gotten so high that it sometimes feels like a perfection standard. This is especially true when the incident or violation involved results in a fatality.

The fact that the guy who caused the incident in this case was also the sole victim might have contributed to a sense of rough justice that made it easier for the court to uphold due diligence. Even so, the B & M is an important and reassuring reminder that due diligence is not dead.

The Norm Keith Legacy

Incidentally, the subcontractor’s lawyer in this case was Norm Keith of the Gowlings law firm. Just about any time an Ontario court accepts a due diligence defence in an OHS prosecution, it’s a pretty good bet that Norm represented the defendant.

Of course, Norm is also on the Insider’s Board of Advisor; he’s one of the speakers who will explain the practical meaning of due diligence and what OHS programs must do to avoid liability the way the contractor and sub did in B & M at our Compliance Summit in Toronto on October 14-15. If you haven’t signed up yet, you can check out the entire conference program at http://www.ohscompliancesummit.com/

I’ve also invited Norm to talk about the lessons of the case at a Webinar in early September. We’ll let you know the details if we can work things out.