Your company can avoid liability for environmental violations by proving that it took all reasonable steps to comply with environmental law and prevent the violation—in other words, that it exercised “due diligence.” But nowhere in the law does it spell out exactly what “reasonable steps” are required. Courts decide this issue case-by-case. One way to get insight on what steps are required is to look at how these cases were decided, why the company or individual won or lost its due diligence argument and apply the lessons from these cases to judge your EHS program’s adequacy. The Insider’s annual Due Diligence Scorecard can get you started. Every January, the Insider compiles reported environmental cases from across Canada involving the due diligence defence from the past year into a Scorecard, which has three parts:
- A review of the due diligence defence;
- The Scorecard itself—that is, summaries of each of the cases telling you whether the company (or individual) won or lost, what happened and how the court analyzed the due diligence defence; and
- 10 lessons that you can learn from these cases.