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Health & Safety: Due Diligence

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Presentation on theme: "Health & Safety: Due Diligence"— Presentation transcript:

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

2 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 Agenda Items The Education Safety Association of Ontario

3 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. But it goes further then just being a regulatory enforcer – if there is a hazard, irrelevant of if there is no specific legislation, reasonable precautionary measures must be taken. The Education Safety Association of Ontario

4 The Education Safety Association of Ontario
Laws & Regulations Criminal - Intent Absolute Liability (Highway Traffic Act) Strict Liability (Occupational Health & Safety Act) Prosecution is broken into 3 areas: Criminal Intent – robbing a store – you know it is wrong but you do it anyway Absolute Liability – 90 km in 60 km zone – irrelevant if you are aware of speeding – you are charged Strict Liability – You are liable BUT if you have taken reasonable precautions – you have a defence of due diligence. The Education Safety Association of Ontario

5 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 We will review all of these but are focus will be the Occupational Health & Safety Act (OHSA) The Education Safety Association of Ontario

6 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 All workplace parties have duties – the worker, employer and supervisor complete duties are found in the OHSA Workers – it is important that it can be shown they report hazards (ideally written hazard reports) Supervisors – they must meet the “3” criteria of being “competent” as will be discussed under definitions later in the presentation The Education Safety Association of Ontario

7 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.” While workers need to be informed of hazard and trained – the blanket clause - take every precaution reasonable in the circumstances for the protection of a worker-requires both the employer and supervisor to go beyond the requirements of the regulations to ensure safety. The Education Safety Association of Ontario

8 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…” Example – keep the walk clear of snow is a good example. Can you think of any other? The Education Safety Association of Ontario

9 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. Example –someone riding on rollerblades accidentally knocked you over on the sidewalk resulting in a head injury The Education Safety Association of Ontario

10 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. Applicable to a school environment and illustrates the need for very high care as children are viewed as being extremely vulnerable. The Education Safety Association of Ontario

11 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 We will look at these 2 common law requirement - Duty & Standard The Education Safety Association of Ontario

12 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. Read The Education Safety Association of Ontario

13 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 Read – emphasis on “prudent parent” The Education Safety Association of Ontario

14 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. An example would be driving along the highway in the wrong direction. The Education Safety Association of Ontario

15 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 There are other pieces of legislation where the defence of due diligence is available – these are a few. The Education Safety Association of Ontario

16 The Education Safety Association of Ontario
New Legislation Summary Convictions The employer, supervisor and worker can be “ticketed” for safety infractions! Bill C-45 You can now be held criminally liable under the Canadian Criminal Code for serious workplace accidents! Bill C-45 creates a criminal liability Summary Convictions are very much like Highway Traffic Act (Absolute) The Education Safety Association of Ontario

17 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 Ministry of Labour no longer involved – it is now a criminal matter investigated by the police. The Education Safety Association of Ontario

18 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 These are normally issued for failure to wear PPE or some other infraction as noted in the OHSA. The Education Safety Association of Ontario

19 The Education Safety Association of Ontario
MOL Initiative Enforcement of regulations More inspectors Target workplaces Multi-visit specific employers Orders, Tickets and Charges The MOL has increased their visibility through a few new avenues. The Education Safety Association of Ontario

20 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. “Prudent Person” Care - take every precaution reasonable in the circumstances for the protection of a worker The Education Safety Association of Ontario

21 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?” What would someone else in your job consider as the proper degree of care. The Education Safety Association of Ontario

22 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. This illustrates that you must not only meet the requirements of the law but must be held to a higher standard of being diligent. The Education Safety Association of Ontario

23 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 You just can’t forget about something and think you will not be held liable. The Education Safety Association of Ontario

24 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! Even after an accident, although too late – still exercise due diligence as fully as possible. (Ideally – you exercise care so an accident does not happen) The Education Safety Association of Ontario

25 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 There is no 10 things to do to have Due Diligence. These 7 are a given requirement Further to the 7 items, awareness of potential hazards and addressing them is required. The Education Safety Association of Ontario

26 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 You need to prove you are diligent. DOCUMENTATION!!!! The Education Safety Association of Ontario

27 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) Documentation is the only “Proof” of defence. Eye witnesses, hearsay, etc. – all not admissible The Education Safety Association of Ontario

28 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. If the IRS is not working – Due Diligence success is extremely limited.

29 The Education Safety Association of Ontario
Definitions Owner Employer Supervisor 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 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 Definitions means a person who has charge of a workplace or authority over a worker The Education Safety Association of Ontario

30 The Education Safety Association of Ontario
Definitions Worker Workplace The Act Regulation Prescribed means a person who performs work or supplies services for monetary compensation 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 Definitions means prescribed by a regulation made under this Act The Education Safety Association of Ontario

31 You MUST meet all 3 conditions to be competent
Definitions Competent Person means a person who,        (a)    is qualified because of knowledge, training and experience to organize the work and its performance,      (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 Definitions You MUST meet all 3 conditions to be competent The Education Safety Association of Ontario

32 General Duties of Employers
Functions include: Ensuring that the Act and regulations are complied with Supervising workers to protect their health and safety Not employing underage workers Providing prescribed protective equipment Appointing “competent” persons as supervisors The Employer must know their duties

33 General Duties of Employers (cont’d)
Functions include: Informing a worker, or a person in authority over a worker, about any hazard in the workplace Helping JHSCs to carry out duties Preparing a written occupational health and safety policy and setting up a program to implement Taking every precaution reasonable for the protection of workers For more thorough requirements – see the OHSA

34 Duties of Supervisors Duties include:
Ensuring worker complies with the Act and regulations Ensuring required equipment, protective devices or clothing is used or worn by worker Advising a worker of any health or safety hazards Providing written instruction for worker’s protection Taking every precaution reasonable for the protection of workers For more thorough requirements – see the OHSA

35 Worker, JHSC & Certified Member Duties
Worker Duties- OHSA Act Section 28 JHSC Duties - OHSA Act Sec. 9 Certified Member Duties - OHSA Act Section 9(12) - (17), 45 investigate “dangerous circumstances”, direct employer to stop work* be paid for time spent at certification training and while carrying out prescribed duties. interaction under certain circumstances with MOL or OLRB For more thorough requirements – see the OHSA

36 OHSA Penalties 66.  (1) Every person who contravenes or fails to comply with, (a) a provision of this Act or the regulations; (b) an order or requirement of an inspector or a Director; or (c) an order of the Minister, is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both. 66. (2) If a corporation is convicted of an offence under subsection (1), the maximum fine that may be imposed upon the corporation is $500,000 and not as provided therein. The Penalty you are trying to avoid BUT more important – the accidents you are trying to prevent.

37 The Education Safety Association of Ontario
OHSA Defence 66. (3) On a prosecution for a failure to comply with, (a) subsection 23 (1); (constructor) (b) clause 25 (1) (b), (c) or (d); or (c) subsection 27 (1), it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken. Your Due Diligence defence The Education Safety Association of Ontario

38 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 Greater risk – greater liability The Education Safety Association of Ontario

39 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. Could this have been prevented? How? If similar devices are used in the department, what steps should you take? The Education Safety Association of Ontario

40 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. Do you think the supervisor could be prosecuted? What could have been done? The Education Safety Association of Ontario

41 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 People – were they trained, oriented and can you show this. Environment – does extra care need to be exercised and was that communicated Equipment – do you have equipment that requires instruction before use. Materials- do you have chemicals that require instruction on usage Process – is there a specific way to perform the task. The Education Safety Association of Ontario

42 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. This is how we normally see what happens The Education Safety Association of Ontario

43 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. Note the Legal Position after reviewing the present control method. The Education Safety Association of Ontario

44 Example Case Continued
Preferred Control Method 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. This points to a proactive means of ensuring the ladders are not faulty – waiting for them to fail is not being diligent. The Education Safety Association of Ontario

45 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. Proactive – maintenance program to clean floors clean and dry Reactive – someone spills a coffee on the floor and the supervisor reacts immediately. Proactive – should be well established standards and procedures. Reactive – tend to reflect a good IRS as people are reporting hazards and they are acted upon. The Education Safety Association of Ontario

46 The Education Safety Association of Ontario
In Your Workplace Violence in the Workplace example - A disruptive client harasses a worker Slips, Trips and Falls example – Someone trips on a lifted carpet seam Overexertion example – 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? – Workplace Violence program and procedures, training, follow-up & analysis - Preventative Maintenance Program, training, modifications, ensuring hazards are communicated - Worker training, reporting of unsafe or unstable items, management walk through, follow up. The Education Safety Association of Ontario

47 The Education Safety Association of Ontario
Practical Steps Awareness Objectivity Proactively Document Follow-up These 5 steps indicate what a supervisor or employer must do respecting hazards The Education Safety Association of Ontario

48 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

49 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 As requested by audience

50 Michael Atkinson Education Safety Association of Ontario
Thank You! Questions? Michael Atkinson Education Safety Association of Ontario The Education Safety Association of Ontario


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