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Due Diligence Safety Services is committed in developing safety programs that work to create an injury free, healthy workplace for all management and employees.
Definition
“Due diligence is the level of judgment, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances”.
Due diligence is demonstrated by your actions before an incident occurs, not after the fact.
Section 217.1 of The Criminal Code is the section which is sometimes called the Due Diligence section it states “Everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.”
Commonly referred to as the “General Duty Clause”, every province and territory in Canada has similar occupational health and safety legislation that describes the obligations of employers and workers.
Alberta’s clause reads as follows:
2(1) Every employer shall ensure, as far as it is reasonably practicable for the employer to do so,
(a) the health and safety of
(i) workers engaged in the work of that employer, and
(ii) those workers not engaged in the work of that employer but present at the work site at which that work is being carried out, and
(b) that the workers engaged in the work of that employer are aware of their responsibilities and duties under this Act and the regulations.
(2) Every worker shall, while engaged in an occupation,
(a) take reasonable care to protect the health and safety of the worker and of other workers present while the worker is working, and
(b) co-operate with the worker’s employer for the purposes of protecting the health and safety of
(i) the worker,
(ii) other workers engaged in the work of the employer,
and
(iii) other workers not engaged in the work of that employer but present at the work site at which that work is being carried out.
This means that each worker has to take reasonable care to work safely on their own and with other workers present, and to cooperate with their employer when it comes to workplace health and safety.
(3) Every supplier shall ensure, as far as it is reasonably practicable for the supplier to do so, that any tool, appliance or equipment that the supplier supplies is in safe operating condition.
(4) Every supplier shall ensure that any tool, appliance, equipment, designated substance or hazardous material that the supplier supplies complies with this Act or the regulations.
(5) Every contractor who directs the activities of an employer involved in work at a work site shall ensure, as far as it is reasonably practicable to do so, that the employer complies with this Act and the regulations in respect of that work site.
Source: Alberta Occupational Health and Safety Act
Revised Statutes of Alberta 2000
By including the words “reasonably practicable”, legislators make the Occupational Health and Safety Act “strict liability” legislation and introduce the possibility of a “due diligence defense”.
Strict liability laws give you the opportunity to make rational decisions. You have the option of deciding if you do or do not proceed with a particular action depending upon the circumstances. Instead of complying with the specific rule presented in the law, you could do everything “reasonably practicable” and demonstrate “due diligence”.
Due diligence is demonstrated by your actions before an incident occurs, not after the fact.
Failure to prove that you have been duly diligent in complying with occupational health and safety legislation can result in significant penalties. The penalty for a first offence in Alberta can be up to 6 months in jail or $500,000, or both; for second or subsequent offences the penalties double. While these costs are significant, the human and economic costs can be far greater in the event of an incident.
What factors are considered in establishing a due diligence defense?
In determining whether your defense of “due diligence” is valid, a judge or jury considers three main factors:
(1) Foreseeability — could a reasonable person have foreseen that something could go wrong?
(2) Preventability — was there an opportunity to prevent the injury or incident?
(3) Control — who was the responsible person present who could have prevented the incident or incident?
Foreseeable
In making a defense that the incident could not have been foreseen, your lawyer would have to show that the event was so unlikely that you or a group of your peers would never have expected it to occur. Reasonable employers know about their businesses and about the hazards of operating them. Ignorance is not an adequate defense if others in your industry knew about the hazard.
Your lawyer would have to show that the event was so unlikely that you or a group of your peers would never have expected it to occur.
Preventable
In making a defense that the incident was not preventable, your lawyer would have to show that you did everything reasonable to prevent it.
This would include
(a) identifying hazards — performing a hazard assessment is extremely important;
(b) preparing and enforcing safe work procedures — ignoring a worker’s poor compliance or non-compliance with company procedures is not an adequate defense;
(c) training the worker, which includes training in appropriate safe work procedures;
(d) monitoring the worker after they receive their training to verify that their performance is acceptable (or corrected if unacceptable)
— reasonable employers are expected to monitor the work of their employees. Unsafe behaviour must be corrected before a worker is allowed to perform work unsupervised; and
(e) having a progressive disciplinary policy to ensure continued compliance with company safety policies and procedures.
Control
The last argument that your lawyer could use is that you had no control over the circumstances that resulted in the incident.
LI015 — Legislation 5
Revised November 2005
Each of these steps would have been documented.