OHS Due Diligence:

Essentials of Taking Reasonable

Care as a Manager/Supervisor

Jeremy Warning

November 8, 2017

Agenda

1. Current Health and Safety Enforcement

Environment

2. Why Prosecutors Charge Managers and

Supervisors

3. Who is a “Supervisor” for OHS purposes?

4. Understanding Supervisory Due Diligence and All

Reasonable Care

5. Documenting Due Diligence

2

CURRENT HEALTH AND SAFETY

ENFORCEMENT ENVIRONMENT

IN CANADA

3

Current OHS Enforcement Environment

• Over the last number of years, governments across

Canada have increased enforcers

• More Inspectors; more Prosecutors

• Result has been increased enforcement through:

Compliance orders

Stop work orders

Administrative penalties

Prosecutions

4

Current OHS Enforcement Environment

Individual Liability Increasing

• Increased number of supervisors being prosecuted

• Fewer personal charges being withdrawn

• The potential for criminal negligence charges under

Criminal Code exists and supervisors are being

charged and convicted

5

Current OHS Enforcement Environment

Penalties

• For more serious matters substantial fines are

available and are being imposed

• Fines are subject to a surcharge

• Jail terms being sought (and imposed):

R. v. Roofing Medics Ltd., 2013 ONCJ 646

R. v. New Mex Canada Inc., 2017 ONCJ 626

6

Current OHS Enforcement Environment

Key Takeaways

• Unclear if custodial penalties will be used more

frequently by the courts to promote deterrence

regardless of record of defendant

• Is jail becoming less of a risk?

7

Current OHS Enforcement Environment

Criminal Negligence

• Criminal Code duty (section 217.1) parallels OHS

regulatory provisions

• Criminal Code duty requires persons with authority

to direct how persons do work, to “take reasonable

steps to prevent bodily harm to that person or any

other person”

• Criminal Code charges can be advanced in addition

to any OHS charges

8

Current OHS Enforcement Environment

Criminal Negligence

• Criminal negligence is proven by showing that

Criminal Code duty violated in a way that shows

“wanton or reckless disregard” for lives or safety of

others

• OHS regulations and requirements may establish

the reasonable steps one is expected to take to

protect against bodily harm in the workplace

9

Current OHS Enforcement Environment

R. v. Kazenelson, 2015 ONSC 3639 (CanLII)

• Project Manager for Metron Construction, Ontario

• Convicted of 4 counts of criminal negligence causing

death and 1 charge of criminal negligence causing

bodily harm under Criminal Code

• 5 workers fell from 13th storey of apartment building

after swing stage failed when 7 men climbed aboard

• Only 2 lifelines on swing stage

• Sentenced to 3.5 years in jail

10

Current OHS Enforcement Environment

Key Takeaways

• Health and safety legislation could identify

reasonable steps to be taken to protect health and

safety of workers

• General evidence of good and bad pre-incident

behaviour may be irrelevant

• One failure to act could constitute criminal

negligence

11

Current Enforcement Environment

Reputational Risk

• Governments regularly issue news releases

following the conviction of organizations and/or

supervisors and managers under OHS legislation

• Releases name the supervisor/manager

• Supervisor/Manager may be named in press release

even if matter does not meet the usual criteria for a

press release

• Criminal negligence charges are frequently covered

by the media who will name the defendant

12

WHY OHS PROSECUTORS CHARGE

MANAGERS AND SUPERVISORS

13

Why Prosecutors Charge

The factors OHS Prosecutors consider in deciding to

charge a supervisor or manager:

• Seriousness of the breach Nature of breach

Actual and potential harm

• Culpability Relationship between breach and

supervisor/manager behaviour

• Deterrence Prior convictions and orders

Conduct or issue

14

WHO IS A “SUPERVISOR” UNDER

OHS LEGISLATION?

15

Who is a Supervisor?

• Need to consider applicable legislation and definition

of “supervisor”

• Definitions are, generally, similar and turn on control

over work or workplace

• Will often get a broad interpretation such that, on

Ontario, have seen individuals from lead hands to

company presidents or other senior officials found to

be supervisors

•

16

Who is a Supervisor?

• Test is objective and based on the actual

responsibilities and powers of the individual

• “Hands on” authority

• Job or position title is irrelevant

• Personal view irrelevant

• OHS analysis will not necessarily follow collective

agreement or labour relations principles

• Risk does not just exist for persons on site

17

UNDERSTANDING DUE DILIGENCE

FOR SUPERVISORS AND MANAGERS

18

WHAT IS DUE DILIGENCE

19

What is Due Diligence?

• Due diligence, which comes from a 1978 Supreme

Court of Canada decision, is a legal standard which

allows the defendant a defence if stringent, court-

developed standards were met at the time of a

contravention

• Due diligence, the exercise of all reasonable care,

generally is comprised of those ongoing steps taken

to protect workers

20

What is Due Diligence?

• The standard is strict and high but it is not one of perfection. It is not a standard of after the fact assessment of the “one more thing” that could have been done

• Question is: “was the care taken reasonable?”

• Ignorance of the law is not a defence

21

What is Due Diligence?

Key Elements of Due Diligence for Supervisors

and Managers

• Knowledge of applicable laws and standards

• Corporate audits, inspections to assess hazards

• Ongoing correction of hazards

• Corporate safety policies and rules

• Ongoing supervision, worker training, knowledge of

standards, communication of hazards

• Ensuring, enforcing safety

22

KNOWLEDGE OF LEGAL

OBLIGATIONS

23

Knowledge of Legal Obligations

• Fundamental for anyone attempting to practice due

diligence strategies or to assert defence of all

reasonable care

• Means of ensuring knowledge through:

Access to applicable safety legislation

Training in OHS laws

Refresher training in OHS laws

“Competency”

24

KNOWLEDGE OF WORKPLACE

HAZARDS

25

Knowledge of Workplace Hazards

• Courts expect not only knowledge of legal

requirements, but a system which takes all

reasonable steps to determine and assess potential

hazards to workers

• “Taking a step back” – looking at what could go

wrong and, of course, correcting it

• Forseeable hazards

26

Knowledge of Workplace Hazards

• Examine quality of pre-job audits

• Perform documented assessments and inspections

when: Non-routine tasks are performed

Changes to work processes or practices occur

New subcontractors start work

New workers start work or a worker carries out a task new

to that worker

• The more detailed the inspection or audit list

(specific items relevant under regulations) to check

off, the better

• Encourage workers to report health and safety

concerns

27

DEVELOPING AND IMPLEMENTING

PROCEDURES TO ADDRESS

HAZARDS

28

Procedures to Address Hazards

Developing and Implementing Procedures

• Courts expect that ongoing knowledge of workplace

hazards will be used to remedy defects in physical

equipment, work areas, and protective devices

• Courts expect development and implementation of

specific safety policies, practices, procedures, rules

• Courts expect that these will be understandable, up-

to-date and available to workers

29

Procedures to Address Hazards

Developing and Implementing Procedures

• Best practices include:

Regular review of health and safety policy

manual – for self and workers

Familiarity with the procedures that apply to the

work you oversee

Review of relevant procedures with workers

when they are assigned to a new task (or ensure

someone has)

Signoffs on procedure or checklist

30

ADEQUATE INFORMATION AND

INSTRUCTION

31

Adequate Information and Instruction

• Supervisors and managers have a role in ensuring

workers are given adequate information and

instruction

• Supervisors and managers should:

Ensure workers have received necessary

information and instruction (training) when

assigned to specific work

Provide reinforcement of training through

reminders, re-training, safety meetings, etc.

Consider whether a worker’s deviation from

policies and procedures indicates a deficiency in

information and instruction

32

Adequate Information and Instruction

Provide instruction on tasks even to very senior

and/or experienced workers

When giving information and instruction, remind

workers of the risks in the work and how they are

to be controlled

Tailor the information and instruction to the

specific circumstances

Assess the competency of workers

Document your activities and specifics relevant to

the job – training, crew meetings, toolbox talks –

and have access to proof of training

33

Adequate Information and Instruction

Communication and Coordination

• Beyond training and toolbox talks

• Best practices include:

Communication to workers of relevant changes to

work processes, conditions, equipment,

substances, new risks on site

Coordination of work when multiple workers

/contractors working in same area (as needed)

34

Adequate Information and Instruction

Communication and Coordination (cont’d)

Ensuring changes in tasks are communicated to

workers

Ensuring the affected workers have received the

information

Ensuring that there is coordination amongst

workers (both those working for your organization

and those working for contractors) so that their

activities do not endanger one another

Documentation of these steps

35

SUPERVISORY MONITORING

36

Supervisory Monitoring

Supervisory monitoring should include:

Ensuring policies and procedures are understood

and followed

Direct monitoring and reminders – review for

quality and safety

Monitoring with appropriate frequency (increased

monitoring should accompany increased risk,

indication of compliance problems, unusual

complexity of task, new work location)

Proof – documentation such as checklists, forms,

specific details or reminders in notebooks

37

DISCIPLINE FOR SAFETY

38

Discipline for Safety

• All due diligence efforts can quickly unravel if

enforcement is absent or undocumented

• Courts want to see that procedures and rules are

enforced

• Courts may see absence of discipline as an absence

of commitment to health and safety

39

Discipline for Safety

• As supervisors, use all of the tools and authority you

have to enforce rules

Training

Discipline (Escalating as appropriate)

Forms

• Document the discipline in some way

40

Discipline for Safety

Finding the Appropriate Penalty: Be Creative

• Beyond warnings or suspensions think about:

Coaching employee

Re-training of employee in rules and requirements

Removal to other work pending re-training

Disciplinary demotion to other work for specified time frame

Using discipline as opportunity to send safety message through communications and safety meetings

Increasing supervisory monitoring of worker

41

THE IMPORTANCE OF

DOCUMENTATION

42

Importance of Documentation

Your Best Due Diligence Defence

• Creates written record of historical behaviour

• Captures details lessening dependence on memory

or individuals

• Proof of positive compliance efforts for use with

regulator or in OHS litigation, if necessary

43

Importance of Documentation

Your Best Due Diligence Defence

• Documentation of all ongoing efforts

• Documentation of details – who, when, length,

content

• Documentation of all ongoing follow-up,

confirmation, efforts, reminders

44

WHAT KIND OF DOCUMENTATION

SHOULD BE CREATED?

45

What Kind of Documentation Should be

Created?

Checklist For OHS Compliance Records Used or Created by Supervisors and Managers

Completed pre-job hazard assessments

Checks of training records, qualifications if relevant

Detailed records of safety meetings and discussions

Detailed records of supervisory monitoring (e.g. workplace audits, informal safety discussions and specific directions, corrective actions, etc.)

Notes, diary, daily checklist

46

AVOIDING SHORTFALLS IN

DOCUMENTATION

47

Avoiding Shortfalls in Documentation

Quality of Documentation

• Want useful documentation knowing that

organization, supervisor will be held to a strict

standard

• May need to rely on documents months or years

later, ensure they are clear, and retained for years

• Document may need to be understood by regulator

or court/ adjudicator

48

Avoiding Shortfalls in Documentation

Quality of Documentation

• If use shorthand, make sure that it is

understandable and will be remembered

• If your handwriting is hard to read, take steps to

make sure it is more readable

• Include as much detail as possible with all records

– whether a form, checklist or your own

notes/records

• Ensure you include any remedial measures taken

that address health and safety concerns you have

documented

49

Avoiding Shortfalls in Documentation

Appropriate Orientation and Training

• Proof of orientation and training – ensure detailed documentation of:

Content of orientation or training not just a card or signoff (including any on-the-job training)

Ideally name of trainer, all content, even if use external trainer

Length of orientation or training, copies of materials used or tests given

Any questions or absence of questions by trainee

Supervisory follow-up

50

Avoiding Shortfalls in Documentation

Communication and Coordination

• Document communication of changes in the work or

problems (e.g. safety issue or equipment deficiency)

emails

meetings

work instructions

• Vary the nature of the documentation with the risks associated with the change(s)

51

Avoiding Shortfalls in Documentation

Hazard Recognition and Correction

• Recorded audits looking for hazards in work (both

identified / controlled and new)

• Written job hazard analyses, pre-job or pre-work

inspections and meetings. Signoffs as appropriate

• Documented follow-up of taking corrective action(s)

52

Avoiding Shortfalls in Documentation

Supervisory Monitoring

• Record activities including:

Policies and procedures understood and followed

Monitoring and reminders with appropriate frequency (increased monitoring with increased risk, indication of compliance problems, unusual complexity of task, new work location)

Absence of health and safety violations/concerns

• Use detailed checklists, forms or notebooks

53

Avoiding Shortfalls in Documentation

Checklists, Forms and Notebooks

• May be very valuable resource

• Provide detailed records of positive conduct relating to health and safety – monitoring, hazard identification and resolution, enforcement, etc.

• Develop the habit of keeping (and retaining) a diary or notebook to document daily activities

• Don’t cut corners on checklists and forms

• Use notes to augment checklists and forms

54

Avoiding Shortfalls in Documentation

• Avoid complacency

• Where possible, avoid using precedent

documentation (e.g. modifying a completed

document) unless it will be clear from the

documentation that attention has been paid to the

subject matter on the form

• When taking attendance at meetings, ensure

workers sign their own name

55

mathewsdinsdale.com | iuslaboris.com

North America: Canada - Mexico - United States

Central & South America: Argentina - Brazil - Chile - Colombia - Panama - Peru - Venezuela

Western Europe: Austria - Belgium - Cyprus - Denmark - Finland - France - Germany - Greece - Ireland - Italy

Luxembourg - Netherlands - Norway - Portugal - Spain - Sweden - Switzerland - United Kingdom

Eastern Europe: Belarus - Czech Republic - Estonia - Hungary - Latvia - Lithuania - Poland - Romania - Russia - Slovakia - Turkey - Ukraine

Middle East & Asia Pacific: China - India - Israel - Japan - Korea, Republic of - New Zealand - Singapore - United Arab Emirates

Questions?

Jeremy Warning, Partner

T 647.777.8284 | jwarning@mathewsdinsdale.com