AMPs & the Erosion of Due Diligence

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To a non-lawyer, the law often feels like some kind of alien force that’s detached from real life. In fact, nothing could be further from the truth. Once you get past the obscure jargon and elitists running around in powdered wigs, you can see in the laws a reflection of the fundamental values of Canadian society.

Due diligence is a perfect example.

Why Due Diligence Exists

One of the moral underpinnings of Canadian law is the notion that guilt should be based not just on actions and their consequences but what was on the mind of the person who committed them. Thus, the criminal law treats the taking of a life—homicide—differently depending on the killer’s state of mind:

  • Pre-meditated killing—the highest degree of guilt;
  • Killing in the heat of passion—lesser degree of guilt;
  • Killing due to recklessness or gross negligence—lesser degree of guilt;
  • Killing in self-defence or out of insanity—no guilt at all.

OHS laws aren’t criminal laws. And when they were originally enacted, they didn’t address the mental element of an offence. Simply committing the act banned by the law (or omitting to commit the act required by the law) was enough to establish liability.

But in 1979, the Supreme Court of Canada decided in the famous Sault Ste. Marie case that persons shouldn’t be automatically guilty just because of the act or omission. So, it gave them a chance to avoid liability by showing that they made reasonable efforts to follow the law.

This defence is called due diligence.

The Assault on Due Diligence

In recent years, the moral underpinnings of due diligence have come under attack. There’s growing support for the notion that employers must be punished any time one of their workers gets injured. Organized labour is the principal force behind this movement. Thus, the Ontario Federation of Labour’s recent public relation campaign bears the title “Kill a worker, go to jail!”

Carried to its logical conclusion, the “kill a worker go to jail” mentality would eliminate due diligence and restore automatic liability for OHS offences that existed before Sault Ste. Marie.

Administrative Monetary Penalties

The assault on due diligence wouldn’t be that big a concern if it was confined to organized labour. But lawmakers have begun to whittle away at due diligence.

The spearhead of the assault is the imposition of so called administrative monetary penalties (AMPs), i.e., penalties that can be issued in addition to, not in lieu of, the normal fines for offences regardless of whether the company used due diligence to prevent the offence. A company that pays an AMP could still be prosecuted for the same offence in a conventional prosecution (where due diligence would be available as a defence.)

The AMP end-run around due diligence has become a staple of environmental law. And now it’s spreading to OHS law. AMPs for OHS violations may be imposed in BC, Manitoba, New Brunswick, Nova Scotia and the Yukon. Issuing AMPs for OHS offences is also one of the recommendations of the Dean Commission in Ontario.

The Brave New World of Due Diligence

The world has changed since Sault Ste. Marie. As in the environmental field, the public sentiment seems to be moving steadily in the direction that liability for safety violations should be based on the act and its ultimate consequences rather than on what the person who committed the act did to prevent it. Thus, although due diligence is unlikely to completely disappear, initiatives like AMPs are bound to diminish its effectiveness as a defence against liability.