When charged with a violation of the OHS laws, a company can avoid liability if it proves that it exercised “due diligence”—that is, it took all reasonable steps to comply with the law. Although this principle is pretty straightforward, it’s very difficult to determine in the abstract the exact steps an employer must take to establish due diligence as to a particular safety duty, such as providing safety training to workers and adequate supervision. Often the only way to truly understand what qualifies as due diligence is to look at a specific case and see how a court ruled on another company’s actions. A court in Newfoundland recently had to evaluate a company’s due diligence defence. Here’s a look at its analysis.
What Happened: While working along a public highway, a flagger got too close to an excavator operated by a co-worker. He was run over by it and crushed to death. His employer was charged with several OHS violations, including failing to provide proper information, instruction, training and supervision to workers at the site.
What the Court Decided: The Newfoundland and Labrador Provincial Court convicted the company.
How the Court Justified the Decision: In evaluating the company’s due diligence defence as to this charge, the court made the following observations:
- Although the worker who was operating the excavator involved in the incident was experienced, because it was the start of the construction season, he and other long-term workers should still have gotten some refresher safety training;
- The company’s OHS program manual contained a form for documenting the safety courses taken by workers. The company didn’t provide any such forms for the workers involved in the incident to prove that they’d taken safety courses;
- The company did hold tool box meetings at which hazards at the site were discussed;
- There was no evidence that anyone supervised the workers by periodically watching how the excavator drivers, heavy equipment operators and flaggers were doing their jobs;
- The flaggers weren’t instructed on exactly how far away from heavy equipment they were supposed to stay. One flagger testified that she just knew to stay a “safe distance” away; and
- A number of people at the site saw the flagger who was killed get too close to the heavy equipment. But no one reported this safety issue to a supervisor. Had they, the supervisor might have recognized “a pattern of unsafe behaviour” and appropriately dealt with the flagger. Of course, if the company had proper supervision in place, a supervisor would’ve seen the flagger’s unsafe behaviour himself and could’ve responded appropriately, observed the court.
In conclusion, the court said that although there was evidence that the company provided some instruction and supervision to workers, it was minimal and not to the extent required to prove due diligence [R. v. Concord Paving Ltd.,  CanLII 31899 (NL PC), June 8, 2012].
There are a number of due diligence lessons to be learned from the Concord Paving case. First, you must obviously provide adequate safety training to workers. But it’s just as important to be able to prove you provided such training. In this case, the company had an “Employee Training Record” form to document the training courses a worker took. Maybe none of the workers involved in this incident took any safety courses. Or perhaps they did but no one bothered to complete their forms. In either case, the company wasn’t able to prove it exercised due diligence as to the training requirements.
Second, safety instructions must be specific and clearly communicated to workers. For example, telling flaggers to stay a “safe distance” from heavy equipment isn’t a very useful instruction. The company claimed that the rule was to stay 50 metres or paces away from such equipment. But it failed to clearly communicate that rule to the flaggers, as evidenced by the one flagger’s testimony and the circumstances leading to the other flagger’s death.
Third, workers need to understand their role in the IRS system and their duties under the OHS laws. For example, they must report safety hazards they observe to supervisors. Here, several different workers saw that the killed flagger had a habit of getting too close to the equipment. But no one said anything or reported his conduct. If they had, the incident could’ve been avoided.
Lastly, supervisors must actually supervise. That is, they must observe workers to ensure that they’re doing their jobs safely and following correct procedures. We’re not suggesting that a supervisor must watch workers like a hawk and never ever take his eyes off them. But in the Concord Paving case, no supervisors spent any time at all watching the workers at this dangerous site along a highway. As a result, workers such as the flagger were able to freely engage in unsafe practices.
OHS Insider Resources
For more information on some of the issues raised in the Concord Paving case, go to: