"Due Diligence" is most often used to describe the legal concept as a defence against charges laid under provincial statuates, including the Occupational Health & Safety Act ("OH&SA"). Charges may arise from:
The legal defence of due diligence was first discussed by the Supreme Court of Canada. The Court stated that an accused can avoid liability if they can prove that they took all reasonable care to avoid the particular event, which was the subject of the alleged offense.
The defence of "reasonable care" requires that, given the facts and evidence, on the balance of probabilities, all reasonable care was taken to avoid the situation or event that the charge is based upon.
In addition to the Courts, the OH&SA stats that, on a prosecution for failing to comply with the provisions in the OH&SA which set out the duties of constructors, employers, employees or supervisors, "it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken". This may be proven if it can be shown that there was a proper system in place to prevent an offence from happening and that reasonable steps were taken to ensure the effective operation of that system.
The steps or actions that will satisfy the legal test will vary from case to case depending upon factual complexities. However, there are a number of principles of general application which are essential elements of a due diligence defence.
Every employer must understand the nature of the potential risks or hazards in the workplace.
Once the workplace hazards are identified, the Company must have a Safety policy, but more importantly, a program to implement that policy.
The program must have policies and practices in place, which are specifically designated to prevent the type of incident that may violate the OH&SA.
The employer, through its supervisors and managers, must take steps to ensure employees understand the specific safety policy, program and procedures. Training must be up to date.
Safety policies and procedures must be consistently enforced through discipline.
The employer is required to appoint only supervisors who are "competent". To be competent a supervisor must:
This glossary provides a quick reference to common health and safety terms used throughout the Six Step Guide to Health and Safety.
That you should not use your hands to compress garbage in a bag - use a stick.
