Accidents can happen. But as long as you exercise due diligence, that is, take all steps reasonable in the circumstances to follow OHS laws, you won’t be held responsible for them.
It all sounds so simple. There’s just one little problem: The law doesn’t explain what “reasonable steps” are. Some companies assume that following an industry standard amounts to due diligence. But is that true? To find out, the Insider looked at actual cases from around Canada. We found six key rulings in which an employer tried to fend off liability by arguing that its safety practices met industry standards and thus constituted due diligence–three cases from Ontario, two from Alberta and one from Nova Scotia. Employers lost four of the six (see the box on page 7 for a summary of each case). Still, the rulings are important because they show how a court decides whether following industry standards amounts to due diligence. Understanding this can help you determine how to incorporate industry standards into your own safety program.
The question of what constitutes due diligence is something courts must decide on a case by case basis. So trying to predict how a court is going to rule based on how other courts have ruled in the past is tricky at best. But cases are the best and perhaps only evidence we have. And analyzing the cases is a lot better than flying blind. With that in mind, there appear to be five factors courts consider when assessing the industry-standard-equals-due diligence defense:
Standard’s Legitimacy Within Industry
It’s not enough to claim that a safety practice reflects industry standards. You must be prepared to prove that such a standard really exists. You’ll need industry experts to testify that the standard is universally followed by people in the industry and explain why.
In addition, at least one court (the Alberta court in the General Scrap Iron case) has distinguished between an industry standard and an industry practice. The latter is just something that people in the industry do and isn’t necessarily commendable. For example, as one court has pointed out, in nineteenth century England it was industry practice in the mining industry to have children pull coal carts out of dangerous shafts. A standard, by contrast, is consciously adopted and followed for reasons beneficial to the industry. In terms of due diligence, following an industry standard counts for much more than following an industry practice.
Whether Standard Promotes Safety
An industry might adopt standards to serve efficiency instead of or even at the expense of safety. So courts will consider whether the standard is good safety, that is, whether it furthers safety in the workplace.
For example, in the MDF case, a fibreboard manufacturer claimed that it exercised due diligence because its practice of stacking boards was consistent with industry standards. The Alberta court disagreed, saying that even if such a standard existed it was unsafe because it didn’t provide for metal uprights to secure stacked material. In the other Alberta case (General Scrap Iron), the court said that the industry standard of stacking bales of scrap metal four-high was designed to make efficient use of space and had nothing to do with safety.
In addition, if an industry standard has been shown not to be effective in ensuring safety, following it will hurt rather than help your cause. For example, in the MDF case, the court noted that there had been two previous incidents at the site in which fibreboards stacked in accordance with industry standards had collapsed. So the employer should have realized that it was dangerous to keep following the standard.
Standard’s Consistency With Existing Law
The law says employers must meet a standard of reasonable care. Industry standards help employers and judges interpret what reasonable care means in specific situations. Is it reasonable to stack bales of metal scrap four-high or to let workers balance on six-inch beams when laying floor joists?
An industry standard is relevant only to the extent that the law doesn’t already answer the question of whether a practice is reasonable. So if OHS regulations require you to stack scrap metal three-bales-high, that’s the standard for due diligence, regardless of the fact that most people in the industry stack them higher. Stated differently, industry standards don’t supplant legal standards. For example, the Ontario court in the Seamless case ruled that a company couldn’t rely on an industry standard that allowed workers not to use harnesses and safety belts because it contradicted a regulation specifically requiring the use of such equipment.
Worker’s Awareness of the Standard and Capacity to Follow It
Another of the factors courts consider is the workers’ conduct. Employers generally aren’t liable for accidents caused by a worker’s deliberate failure to follow a safety policy or industry standard. According to the court in the Long Lake case, “employers aren’t responsible for. . . rogue acts by employees or isolated acts of carelessness or aberration in conduct.”
But blaming an accident on a worker’s failure to follow an industry standard won’t work unless you can show that the worker knew about the standard and had the necessary skills and training to apply it. For example, in the Barrington Lane case, a construction company claimed that it was industry standard in Nova Scotia for skilled workers to install roof joists while standing on a six-inch beam without a lifeline or scaffolding. But a worker who fell to his death had lied about his training and the employer didn’t check out the worker’s story. The court thus held the employer liable for the accident.
By contrast, the Ontario court in the Long Lake case noted that the worker who didn’t follow an industry standard and got into a fatal accident was a “safety conscious, older, thus, more experienced” millwright who should have known better. As a result, the court found that the employer had exercised due diligence and wasn’t responsible for the accident.
Employer’s Overall Safety Program
When confronting an industry-standard-equals-due-diligence defense, courts look at the big picture and consider the employer’s overall safety program. All things being equal, an employer with fully developed and effective safety policies and procedures stands a much better chance of getting a court to accept the defense than does an employer with a spotty safety program and record.
For example, in the Modern Niagara case (one of the two in which an employer won with an industry-standard-equals-due-diligence defense), the Ontario court went out of its way to point out that the employer had regular health and safety meetings for workers, written health and safety policies and state-of-the-art safety equipment.
By contrast, the Alberta court in the General Scrap Iron case, in which the employer lost, faulted the company for its lack of “an overall policy dealing with safety.” The company had “no safety or procedure manuals” identifying risks and explaining how to avoid them. “What little there was in written form consisted of safety bulletins and such from institutes or agencies” in the recycling industry.
Industry Standards and C-45
So far, we’ve looked at how following an industry standard affects liability under OHS laws. But it also has an impact on C-45. Section 217.1 of the Canadian Criminal Code says that persons who control work must take “reasonable steps to prevent bodily harm” to workers and others affected by the work. The standard of care under C-45 is thus very similar to the standard a company must meet to exercise due diligence under OHS laws.
But showing due diligence under OHS laws won’t necessarily be enough to beat a charge of criminal negligence under C-45. Technically, due diligence isn’t a defense to a criminal charge (although evidence that a company showed due diligence would make it extremely hard for the Crown to make the charge stick).
The industry-standard-equals-due-diligence defense can work in an OHS case but only in limited circumstances. So it’s not the kind of thing you want to hang your hat on to protect your company against OHS liability. And, even when you can make the case, the defense is just evidence, not definitive proof, that you took reasonable steps under C-45.