OH&S Legislation in Canada - Due Diligence

Due diligence is the level of judgement, care, prudence, determination, and activity that a person would reasonably be expected to do under particular circumstances.

Applied to occupational health and safety, due diligence means that employers shall take all reasonable precautions, under the particular circumstances, to prevent injuries or incidents in the workplace. This duty also applies to situations that are not addressed elsewhere in the occupational health and safety legislation. Reasonable precautions are also referred to as reasonable care. It refers to the care, caution, or action a reasonable person is expected to take under similar circumstances.

Another term used is employers must do what is "reasonably practicable".  Reasonably practicable has been described by the Labour Program (Canada) as taking precautions that are not only possible, but that are also suitable or rational, given the particular situation.  Determining what should be done is usually done on a case by case basis. 

To exercise due diligence, an employer must implement a plan to identify possible workplace hazards and carry out the appropriate corrective action to prevent incidents or injuries arising from these hazards.

"Due diligence" is important as a legal defense for a person charged under occupational health and safety legislation. If charged, a defendant may be found not guilty if he or she can prove that due diligence was exercised. In other words, the defendant must be able to prove that all precautions, reasonable under the circumstances, were taken to protect the health and safety of workers.

Due diligence is demonstrated by your actions before an event occurs, not after.

The conditions for establishing due diligence include several criteria:

• The employer must have in place written OH&S policies, practices, and procedures. These policies, etc. would demonstrate and document that the employer carried out workplace safety audits, identified hazardous practices and hazardous conditions and made necessary changes to correct these conditions, and provided employees with information to enable them to work safely.
• The employer must provide the appropriate training and education to the employees so that they understand and carry out their work according to the established policies, practices, and procedures.
• The employer must educate and train the supervisors to ensure they are competent persons, as defined in legislation. Ensure that managers and supervisors:
  • Talk to new employees about safety during orientation training.
  • Meet regularly with staff to discuss health and safety matters.
  • Inspect areas of the workplace under their responsibility, and respond promptly to unsafe conditions and activities.
  • Pay attention to routine and non-routine activities, ensuring that employees understand the hazards and the preventative measures to be followed.
• The employer must monitor the workplace and ensure that employees are following the policies, practices and procedures. Written documentation of progressive disciplining for breaches of safety rules is considered due diligence.
• There are obviously many requirements for the employer but workers also have responsibilities. They have a duty to take reasonable care to ensure the safety of themselves and their coworkers - this includes following safe work practices and complying with regulations.
• The employer should have an incident (accident) investigation reporting system and investigation program in place. Employees should be encouraged to report "near misses" and these should be investigated also. Acting on the recommendations, as well as incorporating information from these investigations into revised, improved policies, practices and procedures will also establish the employer is practicing due diligence.
• The employer should document, in writing, all of the above activities. This documentation will give the employer a history of how the company's occupational health and safety program has progressed over time. Second, it will provide up-to-date documentation that can be used as a defense to charges in case an incident occurs despite an employer's efforts.
• Employers must also ensure that all people who are at the workplace are included, such as contractors, visitors, students/interns and volunteers.

All of the elements of a "due diligence program" must be in effect before any incident or injury occurs. If employers have questions about due diligence, they should seek legal advice for their jurisdiction to ensure that all appropriate due diligence requirements are in place.

Remember, due diligence is demonstrated by your actions before an event occurs, not after.

More information on how to establish these programs is available through OSH Answers, including:

• Basic OH&S Program Elements
• Guide to Writing an OHS Policy Statement
• Emergency Planning
• Hazard Control
• Effective Workplace Inspections
• Incident Investigation
• Job Safety Analysis

Written documentation is essential. Records, reports and documentation for the following activities can include:

• Worker orientation, education, and training.
• Workplace inspections, including corrective actions taken.
• Incident reports, including corrective actions taken.
• Supervisor notes (e.g., supervisor inspections, meetings with workers or contractors regarding safety, etc.).
• Health and safety committee meeting minutes.
• Equipment log books and maintenance records.
• Emergency response drills and exercises.
• Instructions or safe work procedures, including any changes.
• Forms and checklists used when following safe work procedures (e.g., confined space entry permits).
• Sampling and monitoring records from exposure testing.
• Statistics about the frequency and severity of injuries, etc.
• Enforcement of health and safety rules and procedures.

When reviewing your due diligence program, it may help to ask yourself the following questions:

1. Can a reasonable person predict or foresee something going wrong?
2. How severe is the potential harm to workers?
3. Is there an opportunity to prevent the incident?
4. Who is responsible for preventing the incident?