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EMPLOYER DUE DILIGENCE

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Due Diligence

Agenda

Describe “due diligence” with respect to the Canada Labour Code Part II

Describe the legal elements of due diligence

Explain why a robust Safety Management System is required to ensure success

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Opening Discussion

“I have the responsibility to make sure my

workplace stays healthy and safe”

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The Case for Due Diligence

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Health and Safety Prosecution in Canada

Criminal Liability

Criminal Code

Crown must prove:

Act took place

Person charged is means for act taking place

“Mens Rea” (Guilty Mind)

Strict/Absolute Liability

Canada Labour Code

Crown must prove:

Act took place that forms basis of prosecution

“Actus Reus” (Guilty Act)

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Offences of Organizations and Individuals

Criminal Negligence (Criminal Code) vs. Strict Liability (CLC)

Under the Criminal Code: – Burden of proof rests with the Crown

– Must show representative of the organization acted with wanton and reckless disregard for health and safety

– Guilty mind

Under the CLC Part II: – Crown must prove that a contravention

occurred

– Forms the basis of the prosecution

– Accused must prove all reasonable precautions were taken to protect the health and safety of a worker (Due Diligence)

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Penalties

CLC Part II

Each incident may contain multiple offences

Summary Conviction

Any person who contravenes Code

– $ 100,000 for summary conviction

– 2 years in prison, $1,000,000 or both

Indictment

Where offence results in death or serious injury, or one wilfully commits act likely to cause death or serious injury

– 2 years in prison, $1,000,000 or both

Criminal Code

Each prosecution is based on criminal negligence causing death or injury

Summary Conviction

– $100,000 Fine

– Up to 14 years in Prison

Indictment

– No Limit on Fine

– Up to Life in Prison

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Strict Liability

Crown

Under strict liability, there is no requirement for crown to prove fault, negligence or intention

Defense

A rule specifying strict liability makes a person legally responsible for loss caused by his/her acts, omissions or errors regardless of culpability (fault)

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Establishing Due Diligence

Defence can include either:

reasonable care (most common)

or

reasonable belief in a mistaken set of facts

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Canada Labour Code and Due Diligence

Canada Labour Code

Founded on the concept of Internal Responsibility System (IRS)

IRS can be described as the sharing of responsibility for health and safety at the workplace

General Duty of Care for employers

Due Diligence

Founded on the concept of many inter connected parts driven by employer and its engaged employees (managers and workers)

Requires elements and effort of both the organization and its informed individuals

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General Duty of Care

“What a reasonable person would do given a similar set of circumstances...”

“Marked departure from what a reasonable person would do...”

“Knew or ought to have known...”

CLC Part II Section 124 Every employer shall ensure that the

health and safety at work of every person employed by the employer is protected

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In Summary

What is the standard of due diligence?Taking all reasonable care to protect the well-being of employees or co-workers

What is the defense of due diligence?All reasonable precautions to comply were taken in the circumstances

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Due Diligence Requires that an Employer:

Identify all risks that are foreseeable

Implement a health and safety system to address the risks

Understand and take proactive measures required by legislation

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Key Duties of Employers (s.125)

Take every precaution reasonable (s.124) Ensure each employee is made aware of every

foreseeable hazard Provide every person granted access with prescribed

safety materials, equipment, and clothing Ensure that employees who have supervisory or

managerial duties receive prescribed training and are informed of responsibilities

Provide information, instruction and training and supervision to employees

Keep and maintain prescribed records Ensure activities of every person granted access to

workplace do not endanger employees

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Key Duties of Employees (s.126)

Take all reasonable precaution to protect self and others

Work in compliance with CLC and employer instruction and use provisions as provided

Report hazards, incidents, accidents

Cooperate

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Reasonable Precautions

Must be Present in the workplace before an accident/incident

takes place

Must include* Written policies, practices and procedures Hazard inventories, risk assessment and reduction

methods – COHSR e.g. Hazard Prevention Program Employee Engagement e.g. HS/Policy Committee Training and instruction e.g. HPP, HSC. Observation and monitoring e.g. Fire/Life Safety Consistent reporting, monitoring, corrective action

and enforcement e.g. LAB 1070 , LAB1009 , Record keeping e.g. Hazardous Occurrence and HSC

* Canada Labour Code Part II Section 125

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Plan, Do, Check, Act

Due Diligence

Methodical approach

Break it down into manageable pieces

Continuous improvement cycle

One Example: CAN/CSA-Z1000-14 Occupational Health and Safety Management

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Legal requirements, hazard/risk assessments, roles

& responsibilities

Hazard controls, written policies/procedures,

communication and training

Inspections, investigations, program audits

Corrective/Preventive actions, continual

improvement

ImproveHealth, safety productivity,

quality,satisfaction,

image

ReduceRisk, hazards,

down time WSIB costs

ContinualImprovement

PLAN

DO

CHECK

ACT

Managed Systems Structure

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Reasonable Precautions

Support

Right to Know

Right to Participate

Right to Say No

Clarify and Reinforce

Internal Responsibilities

Structured and suitable model

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Due Diligence and Employee Engagement

Right to Know and Participate Health and Safety Committee/

Representative Policy Committee (where applicable) Training Raising continuous improvement

suggestions Reporting hazards/incidents Investigating Sharing knowledge Mentoring others Setting goals and objectives

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Due Diligence and Recordkeeping

Key documents will include:

Proof of Program and implementation

Hazards and Risk Registry and documented controls

OHS/Policy Committee meeting minutes and reports

Orientation and training

Emergency Response Plans

Incident, accident, investigation and corrective action reports

Workplace/equipment inspections and corrective actions

Equipment/Vehicle logs, inspection forms, checklists

Progressive discipline

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Due Diligence and Training

Training will include Orientation Legal obligations Performing work processes safely

and efficiently Hazardous materials and physical

agents Safe use of equipment

(pre-use inspection) Hazard Specific – e.g. Confined Space Personal protective equipment Emergency procedures

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Z1001 Occupational Health and Safety Training

Z1002 Risk Assessment

Z1003 Psychological Health and Safety

Z1004 Ergonomics

Z1006 Confined Spaces (CS)

1600 Emergency Management

CSA Health and Safety Standards that Can Help You on Your Journey

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“Best Practices” for Recordkeeping

Use systems similar to/identical to those you use for documenting production and quality

Build multipurpose job instructions– Hazards of the job, hazard controls required, procedures for doing the job, quality

requirements, production performance requirements, physical demands

Up-to-date hazard identification documents and job procedures

Checklists/forms make it easy for someone to follow a procedure for critical tasks or processes– e.g. Work refusal

Document control procedure – Where to find

– Review when and how often

– Retention period and how disposed of

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Next Steps

To make/support a positive change towards a company that truly values health and safety:

Tomorrow I will…

In the next week I will…

In the next month I will…

In the next year I will…

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Questions

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For all your health and safety solutions, contact:

Workplace Safety & Prevention Services

1 877 494 WSPS (9777)

WSPS.CA