Health & Safety: Due Diligence

Health & Safety: Due Diligence Michael Atkinson - Field Consultant The Education Safety Association of Ontario

Agenda • What is “Due Diligence” • Legislation and Application • Due Diligence as a Defence • Internal Responsibility System (IRS) • Ensuring Due Diligence The Education Safety Association of Ontario

What is Due Diligence? • Knowing your duties under law and taking all reasonable steps to protect everyone. • Being able to demonstrate that you “walk the talk”. • Requires that active steps are taken to identify hazards and prevent accidents.This must be communicated to all likely to encounter those hazards. The Education Safety Association of Ontario

Laws & Regulations • Criminal - Intent • Absolute Liability(Highway Traffic Act) • Strict Liability(Occupational Health & Safety Act) The Education Safety Association of Ontario

Laws • Occupational Health & Safety Act • Occupier’s Liability Act • Tort for “civil negligence” • Education Act (in schools) • Criminal negligence • Other Acts, Regulations and Codes The Education Safety Association of Ontario

Occupational Health & Safety Act - OHSA • All workers have a “duty” to: • comply with the Act and accompanying regulations • report any equipment defects, hazards, or problems to immediate supervisor • Employers have a duty to appoint “competent” supervisors • must be familiar with Act and regulations The Education Safety Association of Ontario

OHSA cont’d • Employers and supervisors have a duty to: • Inform workers of any hazards to which they may be exposed • Train workers in how to protect themselves from these hazards • “… take every precaution reasonable in the circumstances for the protection of a worker.” The Education Safety Association of Ontario

Occupier’s Liability Act A particular area of the law of negligence relating to the duty owed by a person having responsibility for, and control over, the condition of land or premises, toward those that enter onto the premises. The Act requires occupiers to “take such care as in all circumstances of the case is reasonable to see that persons are reasonably safe…” The Education Safety Association of Ontario

Tort for Civil Negligence • A civil (i.e. not criminal) wrong or injury, other than a breach of contract, which the law will compensate through an action for damages. • Based on damage resulting from an act or omission which the perpetrator knew or ought to have known would result from their conduct. The Education Safety Association of Ontario

The Education Act The Education Act views children as “vulnerable individuals”. The Act determines that when dealing with children the “Duty of Care is very high. The Education Safety Association of Ontario

Duty of Care & Standard of Care • Under common law, an employer is obliged to take reasonable precautions in ensuring the safety of an employee • There are two types of care: • Duty of • Standard of The Education Safety Association of Ontario

Duty of Care This is the obligation, created by law, to take care not to harm others by act or omission. The Education Safety Association of Ontario

Standard of Care The degree of care which a reasonable person would exercise in similar circumstances so as to avoid exposing others to an unreasonable risk or harm. In cases where the person to whom the duty is owed is a child in the school board’s care, the standard of care owed to the child is that of the reasonably prudent parent. - Education Act The Education Safety Association of Ontario

Criminal Negligence • Is said to occur when an individual is aware that what he/she is doing is not allowed, or being done incorrectly. • Includes “wanton or reckless disregard” for life or safety. • The individual can be liable both criminally and civilly. The Education Safety Association of Ontario

Other Laws • The following laws, regulations or codes also exact due diligence requirements from the owner, the employer and the employee: • Environmental Protection Act • Ontario Building Code • Ontario Electrical Code • Ontario Fire Code The Education Safety Association of Ontario

Bill C-45 You can now be held criminally liable under the Canadian Criminal Code for serious workplace accidents! Summary Convictions The employer, supervisor and worker can be “ticketed” for safety infractions! New Legislation The Education Safety Association of Ontario

Bill C-45 • Police will take over investigation • Review prior to formal charges • If convicted jail and or fine likely • Criminal record applicable The Education Safety Association of Ontario

Provincial Fines Like a traffic ticket – you can either • Plead guilty by signing the guilty plea on the ticket and paying the set fine • Give notice of intention to appear in court and request a trial • Plead not guilty by giving notice of intention to appear in court and requesting a trial before a provincial judge or justice The Education Safety Association of Ontario

MOL Initiative • Enforcement of regulations • More inspectors • Target workplaces • Multi-visit specific employers • Orders, Tickets and Charges The Education Safety Association of Ontario

Due Diligence as a Legal Defense “Due Diligence means you are NOT liable where you exercised a degree of care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances”- McCarthy, Tetrault - Toronto, Ontario • Due Diligence is not an attitude, but a set of measurable, observable actions. The Education Safety Association of Ontario

What the Courts Say • As a minimum, a reasonably prudent person would know current “industry standards” for an activity and communicate and apply them • “What do other similar organizations do in this circumstance?” • “Did you do everything reasonable in the circumstances to prevent the accident from occurring?” • “Why not?” The Education Safety Association of Ontario

Foreseeable & Preventable • The law in all cases demands that the degree of care is sufficient for the risk created – the higher the risk, the higher the degree of care required. • All reasonably foreseeable risks must be anticipated and steps taken to control the risk. The Education Safety Association of Ontario

Implementing Due Diligence • Ignorance of the law is no defense • Know the Acts and Regulations • Communicate responsibilities to others • Know the industry standards or best practices • Ensure your standards reflect those standards The Education Safety Association of Ontario

Be Proactive The obligation to take “all reasonable care” to ensure compliance requires that proactive steps are taken to ensure compliance. Due diligence requires you to: • develop specific procedures & practices • communicate the procedures/practices • train the building occupants in the procedures/practices • monitor adherence • enforce compliance • Before an Accident Occurs! The Education Safety Association of Ontario

Elements • Safety Policy & Program • Communicated Standards/Procedures • Supervision • Training • Identify Significant Hazards & Address Them • Encourage Reporting & Internal Responsibility • Annual Audits and Reviews The Education Safety Association of Ontario

Proof of Due Diligence • Due diligence can only stem from a real, concentrated and ongoing effort on your part. • The energy spent by you must be enough to be visible to all the staff and clients you are responsible for. • Identifying a hazard is not enough - you must follow-up and DOCUMENT The Education Safety Association of Ontario

Documentation • Record all steps you take for the protection of persons in your control. Have written instructions, procedures and practices. • Create a health and safety file, diary, or other method of written documentation. • All health & safety-related issues must be written, and copies kept for your defense. (Keep forever) The Education Safety Association of Ontario

The Internal Responsibility System • Employers and workers each have responsibilities for health and safety in the workplace • The Act creates an interlocking set of duties, obligations and rights • Government determines if duties and obligations are met • JHSC provides a foundation to ensure the workers’ right to participate, right to know and the right to refuse unsafe work are safeguarded.

Definitions includes a trustee, receiver, mortgagee in possession, tenant, lessee, or occupier of any lands or premises used or to be used as a workplace, and a person who acts for or on behalf of an owner as an agent or delegate Owner Employer Supervisor means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor means a person who has charge of a workplace or authority over a worker The Education Safety Association of Ontario

Definitions means a person who performs work or supplies services for monetary compensation Worker Workplace The Act Regulation Prescribed means any land, premises, location or thing at, upon, in or near which a worker works means the Occupational Health and Safety Act means the regulations made under this Act means prescribed by a regulation made under this Act The Education Safety Association of Ontario

Definitions means a person who, (a) is qualified because of knowledge, training and experience to organize the work and its performance, Competent Person (b) is familiar with this Act and the regulations that apply to the work, and (c) has knowledge of any potential or actual danger to health or safety in the workplace You MUST meet all 3 conditions to be competent The Education Safety Association of Ontario

Words of Wisdom “Risk of injury and risk of conviction/liability go together. If you improve your chances on one, you improve your chances on the other. You should be looking for improvement all the time to meet the very high standards that the courts are imposing.” - Occupational Health & Safety Lawyer - 1997 The Education Safety Association of Ontario

Example 1 You have just received a new piece of equipment in your department. You allow workers to use it in the way that other similar devices are used in the workplace, in a manner that you “think it should be used and experience has taught you”. It malfunctions, and a worker is blinded. The Education Safety Association of Ontario

Example 2 A custodian to receives a shock while plugging in a vacuum cleaner. A few weeks later another custodian receives a shock from the same outlet, causing injury. The Education Safety Association of Ontario

Consider the Factors Look at the different factors People – individuals involved Environment – conditions at the time Equipment – condition/use of equipment Materials – creating any type of hazard Process – were procedures proper when we look at factors above The Education Safety Association of Ontario

Example Case Situation A ladder is required for a worker to complete a job. Unfortunately, there is only a defective ladder available. The worker falls from the ladder and is injured while trying to perform the job. Company Standard All ladders in poor condition (e.g. broken sides, bent or missing rungs, worn anti-slip footings, etc.) are never to be used. The Education Safety Association of Ontario

Example Case Continued Present Control Method Supervisors are to replace/repair all ladders in poor condition upon discovery of any defective ladders. Legal Position The defence of Due Diligence for the employer is hard to establish because there was no active measures taken to ensure that all ladders met the legislative requirements. The method of control is reactive. The Education Safety Association of Ontario

Example Case Continued A regular inspection process of all ladders would ensure ladders in poor condition would be tagged for repair or destruction and not used until compliant. Workers are provided ladder training and instructed not to use faulty equipment but to report it to the supervisor. These are pro-active measures. Preferred Control Method The Education Safety Association of Ontario

Proactive & Reactive • Actions taken “prior” to the hazard to hopefully prevent an accident • Actions taken “upon discovery” of a reported or observed hazard. The Education Safety Association of Ontario

In Your Workplace • Violence in the Workplaceexample - A disruptive client harasses a worker • Slips, Trips and Fallsexample – Someone trips on a lifted carpet seam • Overexertionexample – A worker suffers back injury while trying to stop a shelf from falling over Do you have standards that are communicated and what Reasonable Precautions are there? The Education Safety Association of Ontario

Practical Steps • Awareness • Objectivity • Proactively • Document • Follow-up The Education Safety Association of Ontario

Conclusion • “The farther you are away from your last accident, the closer you are to your next.” • Be prepared! Be duly diligent! • Protect yourself by protecting others! The Education Safety Association of Ontario

Liabilities of a Board of Directors The link below will take you to Volunteer Canada – an excellent website respecting volunteers with an exceptional discussion article on the Liabilities of a Board of Directors http://volunteer.ca/en/node/1697

Michael AtkinsonEducation Safety Association of Ontario Thank You! The Education Safety Association of Ontario

Health & Safety: Due Diligence