Why Audits Are Critical to OHS Compliance

A welder in Ontario needs to flip over a 285 kg steel smoke box so he can work on its other side. He asks his supervisor for permission to use a crane. The supervisor tells him to use a forklift instead. As the welder tries to manoeuvre the box onto the forklift, the supervisor gives it a shake hoping to get it to fall toward the forklift. But the box falls outward onto the supervisor and kills him. The company is charged with two OHS violations for not having any written procedures for handling materials. Instead, “the practice” in the workplace was for workers to use a crane to flip smoke boxes. The company argues that this practice was safe because it hadn’t experienced any incidents in years. But the court rules that the company didn’t use due diligence. The fact that the incident happened as it did “aptly demonstrates that it was more good fortune than good management that there had not been prior accidents” [R v. Chrima Iron Works Ltd.]. THE PROBLEM Companies should take pride in the fact that they have solid OHS programs, few or no safety incidents and that they’ve never been cited for or convicted of a safety offence. But if a company is ever charged with an OHS violation, its track record of safety compliance won’t insulate it from liability. As the Chrima Iron Works case shows, a lack of safety incidents isn’t proof that safety measures are effective. To meet the standard of due diligence, companies must constantly and systematically evaluate their safety measures and what can be done to improve them. The fact that no incidents have occurred in the past is no basis for concluding that the existing measures will keep them from occurring in the future. THE EXPLANATION “The past is prologue.” William Shakespeare wasn’t an OHS lawyer, but his words do a pretty good job of summing up how the law works. Workplace hazards are a moving target. They’re affected by changes in conditions, operations, technology, etc. The same is true of the engineering, work and administrative steps companies take to control those measures. In this dynamic environment, companies need to step back periodically and determine if what they’re doing to manage hazards is working and can be counted on to keep working going forward. Another important principle to understand is that lack of safety incidents and previous violations doesn’t prove effectiveness. Your perfect track record could just as easily be the product of pure luck. A good track record is evidence of compliance; but it isn’t proof. Due diligence demands that you subject your OHS program activities to regular and systematic scrutiny even if they appear to be working. When you think about this principle, it makes perfect sense. After all, if having an unblemished record automatically proved due diligence, companies with no history of violations or safety incidents would be at liberty to commit at least one violation before they could be held liable. Another Ontario court explained this principle well in an environmental offence case. “Broadly-worded policy, proclamation of general philosophical objectives and reliance on an overall good prior record does not directly speak to adherence to the necessary standard of care” required for compliance with the regulations, the court explained [R. v. Canadian Tire Corp.]. THE LESSON There’s nothing wrong with taking pride in the fact that you haven’t had any fall incidents or violations at your workplace. But the real danger to guard against is complacency. What seems to be working might actually have serious flaws that only luck has kept from being revealed. And even if your fall protection system has actually done the job in the past, there’s no guarantee that it will in the future.  So don’t rest on your laurels. Conduct regular inspections and audits and you’ll be on your way to establishing a due diligence defence if you ever need it.