Health & Safety: Due Diligence Michael Atkinson - Field Consultant The Education Safety Association of Ontario

Health & Safety:

Due Diligence

Michael Atkinson - Field Consultant

The Education Safety Association of Ontario


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Agenda

What is “Due Diligence”

Legislation and Application

Due Diligence as a Defence

Internal Responsibility System (IRS)

Ensuring Due Diligence


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What is Due Diligence? Knowing your duties under law and taking

all reasonable steps to protect everyone.

Being able to demonstrate that you “walk the talk”.

Requires that active steps are taken to identify hazards and prevent accidents.This must be communicated to all likely to encounter those hazards.


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Laws & Regulations

Criminal - Intent

Absolute Liability(Highway Traffic Act)

Strict Liability(Occupational Health & Safety Act)


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Laws

Occupational Health & Safety Act

Occupier’s Liability Act

Tort for “civil negligence”

Education Act (in schools)

Criminal negligence

Other Acts, Regulations and Codes


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Occupational Health & Safety Act - OHSA

All workers have a “duty” to: comply with the Act and accompanying

regulations report any equipment defects, hazards,

or problems to immediate supervisor

Employers have a duty to appoint “competent” supervisors must be familiar with Act and

regulations


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OHSA cont’d Employers and supervisors have a duty to:

Inform workers of any hazards to

which they may be exposed

Train workers in how to protect

themselves from these hazards

“… take every precaution reasonable in

the circumstances for the protection of

a worker.”


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Occupier’s Liability Act

A particular area of the law of negligence

relating to the duty owed by a person

having responsibility for, and control over,

the condition of land or premises, toward

those that enter onto the premises. The Act

requires occupiers to “take such care as in

all circumstances of the case is reasonable

to see that persons are reasonably safe…”


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Tort for Civil Negligence

A civil (i.e. not criminal) wrong or injury,

other than a breach of contract, which the

law will compensate through an action for

damages.

Based on damage resulting from an act or

omission which the perpetrator knew or

ought to have known would result from

their conduct.


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The Education Act

The Education Act views children as

“vulnerable individuals”. The Act

determines that when dealing with

children the “Duty of Care is very high.


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Duty of Care & Standard of Care Under common law, an employer is

obliged to take reasonable precautions in

ensuring the safety of an employee

There are two types of care:

Duty of

Standard of


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Duty of Care

This is the obligation, created by law, to take

care not to harm others by act or omission.


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Standard of CareThe degree of care which a reasonable

person would exercise in similar

circumstances so as to avoid exposing

others to an unreasonable risk or harm. In

cases where the person to whom the duty is

owed is a child in the school board’s care,

the standard of care owed to the child is

that of the reasonably prudent parent. - Education Act


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Criminal Negligence Is said to occur when an individual is

aware that what he/she is doing is not

allowed, or being done incorrectly.

Includes “wanton or reckless disregard”

for life or safety.

The individual can be liable both

criminally and civilly.


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Other Laws The following laws, regulations or codes

also exact due diligence requirements

from the owner, the employer and the

employee:

Environmental Protection Act

Ontario Building Code

Ontario Electrical Code

Ontario Fire Code


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New Legislation

Bill C-45

You can now be held criminally liable under the Canadian Criminal Code for serious workplace accidents!

Summary Convictions

The employer, supervisor and worker can be “ticketed” for safety infractions!


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Bill C-45

Police will take over investigation

Review prior to formal charges

If convicted jail and or fine likely

Criminal record applicable


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Provincial Fines

Like a traffic ticket – you can either Plead guilty by signing the guilty plea on

the ticket and paying the set fine Give notice of intention to appear in court

and request a trial Plead not guilty by giving notice of

intention to appear in court and requesting a trial before a provincial judge or justice


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MOL Initiative

Enforcement of regulations

More inspectors

Target workplaces

Multi-visit specific employers

Orders, Tickets and Charges


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Due Diligence as a Legal Defense

“Due Diligence means you are NOT liable where you exercised a degree of care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances” - McCarthy, Tetrault - Toronto,

Ontario

Due Diligence is not an attitude, but a set of measurable, observable actions.


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What the Courts Say

As a minimum, a reasonably prudent person would know current “industry standards” for an activity and communicate and apply them

“What do other similar organizations do in this circumstance?”

“Did you do everything reasonable in the circumstances to prevent the accident from occurring?”

“Why not?”


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Foreseeable & Preventable The law in all cases demands that the degree

of care is sufficient for the risk created – the

higher the risk, the higher the degree of care

required.

All reasonably foreseeable risks must be

anticipated and steps taken to control the risk.


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Implementing Due Diligence

Ignorance of the law is no defense

Know the Acts and Regulations

Communicate responsibilities to others

Know the industry standards or best practices

Ensure your standards reflect those standards


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Be ProactiveThe obligation to take “all reasonable care” to ensure compliance requires that proactive steps are taken to ensure compliance. Due diligence requires you to: develop specific procedures & practices communicate the procedures/practices train the building occupants in the

procedures/practices monitor adherence enforce compliance

Before an Accident Occurs!


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Elements

1. Safety Policy & Program

2. Communicated Standards/Procedures

3. Supervision

4. Training

5. Identify Significant Hazards & Address Them

6. Encourage Reporting & Internal Responsibility

7. Annual Audits and Reviews


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Proof of Due Diligence

Due diligence can only stem from a real, concentrated and ongoing effortongoing effort on your part.

The energy spent by you must be enough to be visiblevisible to all the staff and clients you are responsible for.

Identifying a hazard is not enough - you must follow-up and DOCUMENTDOCUMENT


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Documentation

Record all stepsRecord all steps you take for the protection of persons in your control. Have written instructions, procedures and practices.

Create a health and safety file, diary, or other method of written documentationwritten documentation.

All health & safety-related issues must be written, and copies kept for your defense. (Keep foreverKeep forever)

The Internal Responsibility System

• Employers and workers each have responsibilities for

health and safety in the workplace

• The Act creates an interlocking set of duties, obligations

and rights

• Government determines if duties and obligations are met

• JHSC provides a foundation to ensure the workers’ right to

participate, right to know and the right to refuse unsafe

work are safeguarded.


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DefinitionsOwner

Employer

Supervisor

means a person who has charge of a workplaceperson who has charge of a workplace or authority over a workerauthority over a worker

means a person who employsperson who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor

includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on person who acts for or on

behalf of an ownerbehalf of an owner as an agent or delegate


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DefinitionsWorker

Workplace

The Act

Regulation

Prescribed means prescribed by a regulationby a regulation made under this Act

means anyany land, premises, location or thing at, upon, in or near which a worker works

means a person who performs work or supplies services for monetary compensationmonetary compensation

means the regulations made under this Actunder this Act

means the Occupational Health and Safety ActAct


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DefinitionsCompetent

Personmeans a person who,

(a) is qualified because of knowledge, training and experience to organize the work and its performance,

(c) has knowledge of any potential or actual danger to health or safety in the workplace

(b) is familiar with this Act and the regulations that apply to the work, and

You MUST meet all 3 conditions to be competent


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Words of Wisdom

“Risk of injury and risk of Risk of injury and risk of conviction/liability go togetherconviction/liability go together. If you improve your chances on one, you improve your chances on the other. You should be looking for improvement all the time to meet the very high standards that the courts are imposing.” - Occupational Health & Safety Lawyer -

1997


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Example 1

You have just received a new piece of

equipment in your department. You allow

workers to use it in the way that other

similar devices are used in the workplace, in

a manner that you “think it should be used

and experience has taught you”. It

malfunctions, and a worker is blinded.


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Example 2

A custodian to receives a shock while

plugging in a vacuum cleaner. A few weeks

later another custodian receives a shock from

the same outlet, causing injury.


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Consider the Factors

People – individuals involved

Environment – conditions at the time

Equipment – condition/use of equipment

Materials – creating any type of hazard

Process – were procedures proper when we look at factors above

Look at the different factors


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Example Case

A ladder is required for a worker to complete a job. Unfortunately, there is only a defective ladder available. The worker falls from the ladder and is injured while trying to perform the job.

Situation

Company Standard

All ladders in poor condition (e.g. broken sides, bent or missing rungs, worn anti-slip footings, etc.) are never to be used.


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Example Case Continued

Present Control Method

Supervisors are to replace/repair all ladders in poor condition upon discovery of any defective ladders.

Legal PositionThe defence of Due Diligence for the employer is hard to establish because there was no active measures taken to ensure that all ladders met the legislative requirements. The method of control is reactive.


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A regular inspection process of all ladders would ensure ladders in poor condition would be tagged for repair or destruction and not used until compliant.

Workers are provided ladder training and instructed not to use faulty equipment but to report it to the supervisor.

These are pro-active measures.

Preferred Control Method

Example Case Continued


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Proactive & Reactive

Actions taken “prior” to the hazard

to hopefully prevent an accident

Actions taken “upon discovery” of a

reported or observed hazard.


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In Your Workplace Violence in the Workplace

example - A disruptive client harasses a worker Slips, Trips and Falls

example – Someone trips on a lifted carpet seam Overexertion

example – A worker suffers back injury while trying to stop a shelf from falling overDo you have standards that are communicated Do you have standards that are communicated and what Reasonable Precautions are there?and what Reasonable Precautions are there?


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Practical Steps

Awareness

Objectivity

Proactively

Document

Follow-up


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Conclusion

“The farther you are away from your last

accident, the closer you are to your next.”

Be prepared! Be duly diligent!

Protect yourself by protecting others!

Liabilities of a Board of Directors

The link below will take you to Volunteer Canada – an excellent website respecting volunteers with an exceptional discussion article on the Liabilities of a Board of Directors

http://volunteer.ca/en/node/1697


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Michael AtkinsonEducation Safety Association of Ontario

Thank You!

Documents

Health & Safety: Due Diligence Michael Atkinson - Field Consultant The Education Safety Association of Ontario