Introduction
Welcome to a presentation on Due Diligence.
Objective…to have participants gain a better understanding of proper due diligence and its’ importance in maintaining a healthy and safe workplace. Purpose?
• to understand what due diligence means in practice, and why you care
• to infect our workplaces with a prevention obsession by considering:
– Why is due diligence an issue in OHS?
– Who might need it? …cont’d

• How can you establish it?
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how does the court set a standard? comparing yourself to the standard components of due diligence defences must it be in writing? liability of corporate officers, directors, managers

 What consequences do you avoid when you’ve got due diligence?

Why is due diligence an issue in occupational health and safety?
• courts see OHS offences as strict liability offences
• unlike criminal charges, not necessary for prosecution to prove intentional wrong doing
• due diligence is a defence in strict liability cases
• strictly liable for your unlawful act, unless you produce proof that you were not negligent…must prove you took all reasonable care

Who might need to prove that they took reasonable care?

Who, in your workplace, has direct authority and ability to make health and safety decisions? (Section 2)

All these have duties under the OHS Act... the greater the control, the greater your accountability in court. (Section 23)

• employer
• constructor
• contractor
• employees
• supervisors
• self­employed
• owner of premises
• suppliers
– goods
– services

How can you establish due diligence when defending a prosecution?
• The court will determine the standard that a reasonably careful person would follow in the same circumstances.

Court sets standard by considering: • was a violation foreseeable?
• specific rules, laws, codes, policy in the industry or workplace • customary practice in the industry (if it exceeds legal minimums) • was there a high level of potential hazard?
• a high probability of harm?
• a high level of needed expertise?
• a high ability in the accused to control the conduct involved? Court then compares the amount of care proven by the accused to this reasonable standard, to see if it fell short

Components of successful due diligence defences...
Samples here are not an exhaustive list…
Circumstances of each case differ as to what every reasonable precaution will be

Menu items are considered in earlier cases: • written health & safety policy
• training for competency & prevention
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general specific workers supervisors • hiring practices & performance management
– what is expected by the organization?
– enforce expectation with warnings, discipline
– include results in appraisals
…cont’d

• adequate supervision
• written safe work procedures
• hazard identification
– workers & supervisors (two­way)
– to and from JOHSC or employee H&S representative
• safety talks
• systematic reporting & follow­up
– hazard, incidents, refusals
– regular inspections

…cont’d

• Build OH&S into tendering practices & project management • specify hiring/tendering criteria on safety
• e.g.: safety certification of company, filing of safety coordination plan for the job, specify standards that will be expected on the project

• if customer is not forming the OHS Committee or representative, include in the specifications who will
• audit for compliance with H&S aspects of the contract
• treat non­compliance as breach of contract
• stop work and/or money

…cont’d

• Joint Committee/Representative required?
– Cooperative team
• needs training & terms of reference

– identifies problems & proposes solutions
– internal audit & warning system for employer and (if necessary) NS
Environment and Labour
…cont’d

• Written health & safety program
– to count, it must be communicated and lived
– monitor effectiveness, and update as needed in consultation with JOHS Committee or health & safety representative
…cont’d

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