Health and Safety Due Diligence Defense 0% Employer Success in 2023

OHS Insider https://ohsinsider.com/ has been publishing their

annual due diligence cases scorecard since 2005, and in those 17

years, defendants have won only 22% of the time. After hitting a

record low of less than 10% in 2021, the 2022 success rate slightly

crept up to 16.6%. As stated in their last publication “Due

Diligence 2023, The 18th Annual Scorecard” for the first time,

defendants have had a 0% success rate in their due diligence

defense in 2023 i.e. defendants had 14 losses out of 14 cases tried

in court. Yep, you read that right, not 1 case succeeded in

proving they had exercised their due diligence and were found

guilty of the OHS charges laid against them. Penalties levied

against these entities ranged from $18,000 to $600,000, and even

individuals associated with these incidents faced fines up to

$15,000.

This begs the question: “Why are most if not all (2023) due

diligence defense cases failing in court”?

To help understand what might be happening we first need to

understand what is needed to show a due diligence defense.

According to OHS Insider, courts look at the same basic factors

in determining whether a defendant took all the reasonable

steps necessary to establish due diligence:

Factor 1. Foreseeability

Companies are expected to protect their workers from

foreseeable hazards, including both general hazards and

hazards specific to the particular industry, equipment and

materials. Courts consider whether a reasonable person in the

company’s position would have foreseen that something could

go wrong. A due diligence defense is likely to be successful if

the incident was a freak occurrence, one that was so unlikely

that the company couldn’t reasonably have expected it to occur.

Factor 2. Degree of Potential Harm

The greater the potential harm if a certain violation were to

occur, the more a company is expected to do to ensure that it

doesn’t occur. Thus, companies have a duty to guard against

even remote risks if they involve a risk of serious harm.

Factor 3. Preventability

Courts also consider whether the company had a chance to prevent

something from going wrong and, if so, whether it made an effort to do so.

If a company has an opportunity to prevent an incident from happening, it

must take all reasonable steps to do so, such as identifying hazards,

preparing safe work procedures, training workers and supervisors and

disciplining those who violate safety rules (Proper supervision). If a

company can show that it took such steps but the incident happened

anyway, it may be able to successfully argue that it exercised due diligence.

Factor 4. Control

Courts also look at who had control over the situation—that is, who was

present and could have prevented what went wrong. For example, suppose

a supervisor sees a worker violate the company’s safety rules but doesn’t

discipline the worker or order him to follow proper procedure. If the

worker gets hurt as a result, it may be difficult to prove due diligence

because a supervisor was present, had control of the situation and yet didn’t

take reasonable steps to prevent the injury.

It is important to understand that the small number of OHS prosecutions

that actually go to trial each year, only a few get reported. And not all of

those reported cases get decided on a due diligence defense. There were

only 14 reported OHS due diligence cases in 2023, as compared to 18 in

2022, 16 in 2021, 18 in 2019 and 16 in an average year. Many cases never

go to trial and end up with plea bargaining agreements usually entailing the

defendant agreeing to a lesser charge in exchange for a guilty plea.

Regardless, these stats should be alarming for your business executives. To

make matters worse the Supreme Court of Canada has just made a game

changing decision.

According to an article published by Canadian Occupational Safety https://

www.thesafetymag.com/ca In a groundbreaking decision, Canada’s

Supreme Court has ruled that municipalities can be held legally responsible

for accidents on construction sites, even when they lack direct control over

the workers or the workplace. This landmark judgment has sent

shockwaves through the health and safety industry, prompting concerns

and calls for a reevaluation of due diligence practices.

The case in question involves the tragic death of Cecile Paquette, who was

crushed by a grader while crossing Elgin Street in Sudbury in September

2015. For years, Greater Sudbury officials argued they weren't responsible

for the accident, as they legally classified themselves as neither "employers"

nor "constructors." Instead, they attributed blame to Interpaving, the

contractor hired for the construction project.

In a split decision, the Supreme Court justices determined that

the city was the "employer of the inspectors" responsible for

overseeing the construction project and "employer of

Interpaving." This decision places a significant burden on

municipalities and private entities contracting construction

work, holding them accountable for safety violations on their

projects.

The concept of "due diligence" in this context has also come

under scrutiny. Historically, owners had minimal involvement

in ensuring on-site safety, primarily contracting out to thirdparty

constructors. However, the Supreme Court's decision

suggests that owners may now need to take a more active role in

supervising and monitoring construction projects to meet their

due diligence obligations.

So why are so few defendants able to successfully prove that they

exercised their due diligence?

There are a combination of factors that most likely play into this.

One of which may be the ability and growing competency

through case law and experience of crown prosecutors in

pursuing cases they know they are very likely to win and

negotiating pleas or dropping the cases or not pursuing them in

the first place if they believe their chances of a successful

prosecution to be average or slim.

Judges may also have a lower tolerance for a lack of due

diligence as OHS statutory and regulatory laws have continued

to be more and more stringent.

Finally defendants (Owners, Employers, Contractors, Managers,

Supervisors) may have a limited or skewed understanding of

what is actually required to exercise proper Due Diligence which

goes way beyond having a program and Policy on paper.

The bottom line is that proving Due Diligence is very difficult in

the best of circumstances. It is virtually impossible to do if the

defendant does not have, understand and execute their Health

and Safety Management System as required under the provincial

(federal) statutes, regulations, codes and standards.

WE can help. WE can provide coaching in leadership skills,

communication, recognition, engagement and psychological

hazard assessments. WE can help you unleash your power of

positive influence. Call or email Marc Keough at WE

Marc Keough

Health and Safety Manager

Windley Ely

[email protected]

C: 514-409-4427

O: 1-877-947-2090 ext.: 2035