THE INSIDER'S 1ST ANNUAL DUE DILIGENCE SCORECARD

PART 2: Using Cases to Judge the Legal Soundness Of Your Safety Program This is the second part of the Insider’s annual survey of due diligence. Last month, in Part 1, we looked at the 11 cases since March 31, 2004 (the date Bill C-45 took effect) where a Canadian court decided a due diligence case. Here’s an analysis of the lessons of those cases and how to apply them to evaluate if your own safety program meets due diligence standards. The Practical Meaning of Due Diligence As we noted last time, due diligence is a rule made up by judges and applied one case at a time:

• First the prosecutor must prove beyond a reasonable doubt that you violated an OHS law; and
• If the prosecutor does this, you must prove by a balance of probabilities that you exercised due diligence.

Proving due diligence means showing that you made reasonable efforts to follow the laws and prevent accidents. This is called the “reasonable care” branch of the due diligence defence (as opposed to the “reasonable belief in a mistaken set of facts” branch, which this story doesn’t cover). It involves two basic factors:

• 
  Foreseeability–did you know or should you have known about the risk?
• Adequacy of Precautions–did you do enough to guard against the risk?

The best way to apply the lessons of a case to your own situation is to look at how the judge decided these two questions. THE FORESEEABILITY FACTOR Due diligence doesn’t require you to protect against all accidents and injuries–only foreseeable ones. There are two ways an accident or injury can be foreseeable:

• You actually knew about the risk; or
• 
  You didn’t actually know but should have known–that is, a reasonable person in your position would have known of the danger.

Evidence of Foreseeability How do judges figure out what you knew or should have known? Answer: By going back to before the incident to see what was going on in the workplace. There are certain kinds of evidence of foreseeability that judges look for: 1. Prior Warnings An accident will likely be considered foreseeable if you were warned in advance about the hazard that caused it. Warnings can come from outside sources such as interim orders from regulators and recommendations from consultants or from internal sources like supervisors, workers and JHSCs. Example: An Ontario kiln operator loses a leg after getting pinned by a moving car full of bricks in the drying area. Three months earlier, the maintenance manager had warned the company of the danger. The court finds the accident was foreseeable [R. v. Brampton Brick Ltd., [2004] O.J. No. 3025]. Conversely, lack of prior warnings can help prove that an incident wasn’t foreseeable. Example: An Ontario mining plant worker gets crushed to death in a press machine. The plant admits that it didn’t guard the rear of the machine where the accident occurred but claims it was unforeseeable that a worker would go near the area. The court agrees, noting that not once in 10 years had the JHSC, MOL, supervisor or worker expressed concern or called for guarding the rear of the machine [R. v. Timminco Ltd., [2004] O.J. No. 5324]. 2. Previous Incidents A hazard will likely be considered foreseeable if there had been previous incidents. Example: An Ontario warehouse worker is killed after his forklift slams the rear bumper of a cube van that had braked to avoid hitting a tow truck going the wrong way down a oneway lane. The warehouse claims that the lane was clearly marked “one-way” and that it was unforeseeable that the truck would disregard the sign. But the court rules that the accident was foreseeable because there had been similar incidents involving trucks driving the wrong way in the complex [R. v. Ontario Food Terminal Board, [2004] O.J. No. 4075]. 3. Training and Experience of Accused Courts look not just at what you knew but what somebody in your position would have known. Example: An Alberta construction worker suffers serious injury when the brick wall he’s taking down with a hammer and chisel collapses on him. The court rules that the accident was foreseeable. A veteran contractor should have recognized that there was a risk of collapse and braced the wall, it says [R. v. Altapro Cleaning and Disaster Restoration Ltd., [2004] A.J. No. 1247]. 4. Training and Experience of Victim The less training and experience the victim has, the more foreseeable the accident is likely to be. 5. Accident May Be Foreseeable Even If How It Happens Isn’t Some accidents are freakish. But if the cause of the accident was a foreseeable danger, the incident will also be considered foreseeable. Even if the exact kind of accident that takes place was unexpected. Example: An Ontario brickworker suffers serious injuries caused by an overswinging gate on a dehacking machine. Witnesses testify that the accident was totally unexpected. But the court says the accident was foreseeable because the company knew the gate was defective and posed a danger. “The test was not . . . whether a reasonable man in the circumstances would have foreseen the accident happening the way that it happened,” said the court, “but whether a reasonable man would have foreseen that an overswing of the gate could be dangerous in the circumstances” [R. v. Canada Brick Ltd., [2005] O.J. No. 2978] THE REASONABLE EFFORTS FACTOR Once it’s determined that an accident or injury was foreseeable, the question becomes whether you made reasonable efforts to prevent it. Evidence of Reasonable Efforts How do judges decide if efforts were reasonable? Answer: By comparing your actions to what a easonable person in your position, knowing what you knew, would have done to prevent the accident. The cases shed light on the factors that go into this assessment: 1. The Steps You Took to Address the Specific Problem Having a good overall safety record or program isn’t enough. Nor is a general concern for safety. Due diligence requires you to take steps to manage the particular hazard involved. Example: In the Canada Brick case where the brickworker got hurt in a dehacking machine, the court acknowledged that the company’s overall safety program was excellent. But while that might reduce the fine, it didn’t prove the company took reasonable steps. “The employer must show it acted reasonably with regard to [the danger of the overswinging gate],” the court explained, “not some broader notion of acting responsibly” [R. v. Canada Brick Ltd.]. 2. How Actively You Enforced Your Safety Program Just having an appropriate safety program isn’t enough. You must show that you actually enforced it. Example: In the Ontario Food Terminal Board case where the forklift driver was hit by a truck going the wrong way, the court said that it had “no quarrel with” the warehouse owner’s traffic control plan. The owner didn’t use due diligence by not “implementing a proper enforcement program” [R. v. Ontario Food Terminal Board]. 3. Whether You Followed Manufacturer’s Instructions Reasonable efforts generally include implementing the safety precautions recommended by the manufacturer of a machine, tool, chemical or other product involved. Example: An Ontario dump truck driver loses both legs in a conveyor accident. The court rules that the company didn’t use reasonable efforts to prevent the accident citing its failure to install the machine guards recommended and furnished by the conveyor’s manufacturer [R. v. Pioneer Const., [2005] O.J. No. 2279]. 4. How You Trained Your Workers Training is obviously a critical factor in due diligence. But courts look not just at the amount of training but whether it covered the appropriate ground and was suited to the skill and experience level of the worker.a Example: An Alberta worker is killed in a crane accident during pipeline construction. The company is charged with letting an inexperienced worker operate the boom. The court rules that the company showed due diligence. Although the boom operator had been on the job for only two days, he had three years’ experience with other companies. He received a thorough orientation and a complete safety workbook before starting the job [R. v. Ledcor, [2005] A.J. No. 766]. 5. How Closely You Supervised Workers The degree of supervision required depends on the danger of the work, the skills and experience of your workers, how well they’ve been trained and your company’s resources. Example: A welder is killed on a barge in a crane rollover accident. The company is found guilty of inadequate supervision under federal law. Even though it was a small company with limited resources, the crane rollover was foreseeable, the work was dangerous and the workers weren’t formally trained to do it. So the court ruled that there should have been a supervisor at the site where the accident occurred [R. v. Miller Shipping, [2005] N.J. No.54]. 6. Whether the Worker Caused the Accident To prove reasonable efforts you must show that you established safety rules and provided workers appropriate safety equipment. If workers don’t follow those rules or use the equipment, it may be harder to hold you liable. Example: A Saskatchewan meat packer loses two fingers after getting her hand caught in a conveyor. The court rules that the company used due diligence. The victim had been trained not to reach into the machine but did so anyway. She wasn’t wearing gloves even though she had been told to; she was wearing a ring even though she was told not to. The victim was “the author of her own misfortune,” the court ruled [R. v. CIC Foods, [2004] S.J. No. 479]. Caveat: You’re still on the hook if you know that workers aren’t following the rules or using the safety equipment. Example: An Ontario miner falls more than three metres to his death. He was wearing his fall arrest equipment but hadn’t “tied it off.” The company claims the accident was the victim’s fault. But the court disagrees. The company knew workers weren’t tying off to save time but didn’t do anything about it. Tolerating this “culture of discretion” was a safety violation, the court ruled [R. v. Moran Mining & Tunnelling, [2004] O.J. No. 5592]. Conclusion So what does it all mean? It would be naïve to think that we can unlock the secrets of due diligence on the basis of just 11 cases. Even if we had a larger sample, we couldn’t necessarily predict how one court would decide a case in the future based on what another court did in the past–especially when the court is in a different province. Moreover, every case has different facts. And different judges might interpret the same facts differently based on their backgrounds, predilections or whether they had an argument with their spouse before leaving for work. On the other hand, while it might not be an exact science, looking at the cases is essential. That’s because at the end of the day, it’s the judges that decide due diligence–whether a hazard was foreseeable, and whether efforts to guard against it were reasonable. So the only way to piece together the practical meaning of due diligence is to look at the actual cases where a judge answered these questions and then apply the principles to your own safety program.
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