At the 2019 Constructing Safety Leadership Conference held in Saskatoon on April 10, Amy Groothuis Partner, Miller Thomson LLP, discussed due diligence in a session on Emerging Legal Trends. The following, adapted from the March 2019 issue of OHS Insider, provides an overview of the key points discussed.
There are two ways of achieving a successful outcome at trial if charged with an OHS violation. The first is by demonstrating that there was no violation; and the second is by using the due diligence defence. Most due diligence litigation is about what “reasonable steps” were taken. A business owner is not required to prevent all incidents, injuries and violations, only the ones that should have reasonably been foreseen. Following are seven common arguments that almost never work at trial -
1. “It Wasn’t Foreseeable Because It Never Happened Before”
There’s no such thing as a “free first bite.” If a hazard is foreseeable, the fact that it never happened before is no defence.
2. “We Had a Safety Policy but They Didn’t Follow It”
Simply having a safety policy or procedure isn’t enough if that policy or procedure is:
- Not in writing;
- Not effectively explained to workers; and/or
- Routinely ignored or inadequately enforced.
3. “It Was the Worker’s Fault”
The possibility of workers’ messing up or failing to use required safety measures is a foreseeable risk that must be taken into account via a robust Safety Management System.
4. “The Victim Was Drunk/High”
Evidence of a victim’s impairment doesn’t automatically negate liability. A business owner still has to demonstrate that all reasonable steps to protect the victim were taken.
5. “It Was the Subcontractor’s Fault”
Prime contractors in charge of safety and OHS compliance at multi-employer sites can’t blame their contractors and subcontractors for failing to control hazards on the site. The prime contractor is ultimately responsible for having an adequate system in place to oversee and supervise the contractors and subcontractors at the site.
6. “Blame It on Human Error”
News flash: Human beings make mistakes. Exercising due diligence is about recognizing this fact and taking reasonable steps to prevent the mistakes that are foreseeable.
7. “Our Safety Procedures Are First Rate”
Implementing good safety procedures, training, supervision and other administrative measures aren’t enough if the OHS regulations require the use of engineering and physical controls to manage a hazard. While prime contractors have primary they don’t have exclusive responsibility for safety at a multi-employer site. Contractors and subcontractors at the site also have basic OHS responsibilities to protect their own workers.