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May 5, 2019
Due Diligence – A Brief Refresher
“It’s not enough that we do our best, sometimes we have to do what’s required.”
- Winston Churchill
May 5th, 2019 marks the start of what is now called Safety and Health Week, also known as North American Occupational Safety And Health Week, (NAOSH). It is a good opportunity for employers, supervisors and workers to take time to assess whether their policies, procedures, training, monitoring and enforcement regarding health and safety constitute not only their “best,” but also what is required.
In any provincial regulatory trial, once the prosecution proves the actus reus (the commission of the offence as charged) beyond a reasonable doubt, in order to escape liability, a defendant must prove that it, he or she was “duly diligent” on a balance of probabilities. Did the defendant take all reasonable precautions to prevent the risk of harm? This requires “… a high standard of awareness and decisive, prompt and continuing action,” (R. v. Courtaulds Fibres Canada, 1992).
Next, can you prove this on the evidence? Even if all the right things were done, or the wrong things were not done, if this is not capable of being proven, the defence will not succeed. As a general principle, if you cannot prove it, it did not happen.
Your business steps for having and proving due diligence:
1. Have a policy. This is the bare minimum. Update it from time to time, so the one posted on the wall does not acquire too much dust. However, as one court put it, “… a wonderful policy that is not really implemented is not due diligence, and it is really of no use.” (R. v. D & J Isley and Sons Contracting Ltd., 2019 ABPC 9. )
2. Management, supervisor, worker/union buy in. Without this, the policy is just words. Make serious efforts to solve significant disagreements in whatever forum best suits the issue, with litigation only as a last resort.
3. Take the time to identify the risks, both the general and the specific. Do that regularly and involve not only management and safety professionals, but also the people who actually perform the task. There can sometimes be a gap between what senior management believe is happening in the factory or in the field and what is really happening. You do not want to find out about the gap after the accident. Know that after an accident, the risks that are reasonably foreseeable (what you should or should not have done) will be assessed with the benefit of hindsight. Investigators, lawyers and courts will inevitably spend days, weeks, months and even years looking at something that occurred in a matter of minutes.
4. Once the risk is identified, decide what you are going to do about it, if anything. There may be valid reasons for deferring on an issue, but have a plan identified, rather than just ignoring it. Also, a great deal of time and money can be spent on quantitative risk assessments. Do not forget the usefulness of the experienced qualitative assessment and the exercise of common sense and good judgment. You cannot do everything in one day, even with enormous resources. Deciding not to do something is usually better than repeatedly kicking the can down the road.
5. Start implementation of the solutions. This involves real procedures (again draw on those who perform the task), real training, real supervision and monitoring and fixing any glitches that may arise. Be aware that the defence of “but we have procedures for that,” is only as good as the supervision, monitoring and enforcement that attach to those procedures and which can be demonstrated on the evidence.
6. Start over again.
It is worth repeating that what is written in manuals and taught in training (often, in today’s world, in an online environment) does not always match what is done by the workers. In order to demonstrate due diligence, you must not only have clear and explicit procedures, but sufficient training and supervision, monitoring and auditing of actual practices. Any non-compliance must be addressed at the time; do not let it go “just this time.” When that is finished, the company should start over and have an ongoing evaluation, whether for its direct employees or its contractor workers. The ultimate decision makers need to know and address what is done in the real world. The best of intentions is not enough. “To be meaningful, … (policies) need to be actuated through human beings. Trust in workers that instructions are followed, and assumptions that certain actions have been taken, do not constitute due diligence by an employer,” (R. v. D & J Isley). In other words, doing your best is insufficient, do what is required.