due diligence: lessons for employers from the cases adrian miedema, partner dentons canada llp,...
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Dentons Canada LLP
Due Diligence: Lessons for Employers from the Cases
Adrian Miedema, PartnerDentons Canada LLP, TorontoTel: (416) 863-4678Email: [email protected]
05 November 2014
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Agenda
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• I. Three types of offences
• II. Case examples
• III. How to build a due diligence file for court
• IV. Recommendations
• V. Q&A
Duration: 60 minutes
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I. Three Types of Offences
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Three types of Offences
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1. Criminal: guilty mind (e.g. Bill C-45)
2. Strict liability (almost all OHS offences)
3. Absolute liability
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Three types of Offences
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Strict liability:
“Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.”
Supreme Court of Canada in R. v. Sault Ste. Marie (1978)
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Three types of Offences
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• Two ways to prove due diligence:• took every precaution reasonable in the circumstances
• reasonably believed in a mistaken version of the facts which, if true, would render his or her conduct innocent
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Mens rea offence: example
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Criminal Code
s. 219. (1) Every one is criminally negligent who
(a) in doing anything, or
(b) in omitting to do anything that it is his duty to do,
shows wanton or reckless disregard for the lives or safety of other persons. [underlining added]
Note: s. 217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.
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Strict liability offence: example
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Ontario OHSAS. 25. (1) An employer shall ensure that,. . .(c) the measures and procedures prescribed are carried out in the workplace; [underlining added]
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Absolute liability: example
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Ontario Highway Traffic Act
S. 84.1 (1) Where a wheel becomes detached from a commercial motor vehicle, or from a vehicle being drawn by a commercial motor vehicle, while the commercial motor vehicle is on a highway, the operator of the commercial motor vehicle and the owner of the vehicle from which the wheel became detached are guilty of an offence.
Absolute liability offence
(5) It is not a defence to a charge under subsection (1) that the person exercised due diligence to avoid or prevent the detaching of the wheel.
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Why care about due diligence?
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1. Avoid criminal charges by ensuring employees buy into culture and are trained
2. Raise due diligence defence if charged with strict liability
3. Avoid events (e.g. wheel falling off) that cause absolute liability
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II. Case Examples
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Mistaken belief must be objectively reasonable
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• Ontario v. London Excavators & Trucking Ltd., [1998] O.J. No. 6437
• Excavation, struck concrete
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Not required to take each and every precaution that would be reasonable
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• R. v. Thomas Fuller and Sons Ltd., 2012 ONCJ 731
• “As a matter of law, though, the phrase ‘all reasonable care’ cannot and is not understood to require the accused to take each and every precaution that would be reasonable to take in the circumstances.”
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Supervision must be sufficient
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• R. v. Murray Group Ltd., 2011 ONCJ 896
• Supervisor visited project once per week
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Set clear instructions / boundaries for workers
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• Ontario Ministry of Labour v. 679052 Ontario Ltd. 2012 ONCJ 747
• Car washer drove washed car after specifically instructed not to do so
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Fix unsafe practices immediately
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• Ontario Ministry of Labour v. Reid & DeLeye Contractors Ltd. 2011 ONCJ 472
• Contractor had policy but never ensured it was followed, and was aware that at times it was not being followed.
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Not enough to simply provide PPE
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• Ontario Ministry of Labour v. Lockyer, 2009 ONCJ 73
• Employer must insure that PPE is used
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Properly supervise subcontractors
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• R. v. Aecon Construction Group Inc., 2013 ONCJ 318
• Constructor had identified safety concerns, monitored compliance of its contractors, took remedial action for breaches.
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“Everyone just knew” is not defence
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• Ontario (Ministry of Labour) v. Anray Limited, 2014 ONCJ 203
• Employer argued “everyone just knew” who was permitted to drive excavator
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Post-accident safety fixes not relevant to due diligence
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• R. v. Reliable Wood Shavings Inc., 2013 ONCJ 518
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Identify all hazards
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• R. v. XI Technologies Inc., 2013 ABCA 282
• Calf-roping machine case
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Inherently dangerous workplaces held to high standard
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• R. v. Sunrise Propane Energy Group Inc., 2013 ONCJ 358
• Series of massive propane explosions
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Reasonable to rely on professionals
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• Her Majesty the Queen v. Corporation of the City of Guelph, Ontario Court of Justice, February 2, 2012 (Epstein J.)
• It was reasonable for the City to rely on the stamped drawing of the architect and engineer.
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Don’t need to train employees in tasks they will not do
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• R. v. West Parry Sound Health Centre, 2012 CarswellOnt 7703 (Ont. C.J.)
• Medical manager used extension ladder to access roof to inspect HVAC unit
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III. How to build a due diligence file for court
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Building a due diligence file for court
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• How often does a due diligence defence succeed in court?
• What are the characteristics of successful due diligence defences?
• What are the characteristics of unsuccessful due diligence defences?
• What criticisms have courts had for employers’ due diligence programs?
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Figure 1
Pleaded guilty and let the court decide the amount of
the fine6%
Charges stayed1%
Pleaded guilty and negotiated fine with MOL
55%
Withdrawn-other party convicted
22%
Withdrawn-no other party convicted
10%
Acquitted after trial2%
Convicted after trial4%
Figure 1. Results of Occupational Health and Safety Act Charges(Combined for Corporations and Individuals)
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Figure 2
Convicted after trial4%
Acquitted after trial2%
Pleaded guilty and negotiated fine with MOL
62%
Withdrawn-other party convicted
17%
Withdrawn-no other party convicted
9%
Pleaded guilty and let the court decide the amount of
fine6%
Figure 2. Corporations: Results of Occupational Health and Safety ActCharges
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Figure 3
Pleaded guilty and negotiated fine with MOL
30%
Acquitted after trial4%
Convicted after trial4%
Withdrawn-no other party convicted
13%
Withdrawn-other party convicted
43%
Pleaded guilty and let the court decide the amount of
the fine6%
Figure 3. Supervisors and Workers: Results ofOccupational Health and Safety Act Charges
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III. How to Build a Due Diligence File for Court
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Building a due diligence file for court
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• As much paper as possible
• Make it easy for supervisors: apps, etc.
• Employee signatures on all training meeting minutes
• Keep all training materials
• Safety awards
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Due Diligence Documentation
• The more due diligence paper the better!• Site specific safety orientation records
• Minutes of safety meetings and safety talks
• Completed hazard analysis forms
• Safety sign-in sheets
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Due Diligence Documentation
• Continued:• Training records
• Subcontractor safety guidelines
• Records of site safety inspections
• Disciplinary notes regarding training
• Violation tickets and memoranda
• Notes of any safety instructions provided
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IV. Recommendations
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Recommendations
• Educate – everyone should know OHS laws
• Educate your employees – provide proper training, instruction and supervision
• Discipline workers who fail to comply with safety policies or expected procedures
• Document, document, document
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Recommendations
• Regularly complete hazard analysis to demonstrate that you know the hazards / dangers in the work your employees are doing
• Regularly remind employees of hazards
• Regularly ask, “What could go wrong?
• Conduct regular audits of the workplace
• Periodically use external auditors
• Keep good notes of any safety instructions provided or any safety concerns raised – and what action was taken in response
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V. Brief Q&A
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Questions?
Adrian Miedema, LawyerDentons Canada LLP, Toronto
Tel: (416) 863-4678Email: [email protected]