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

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Presentation on theme: "Health & Safety: Due Diligence Michael Atkinson - Field Consultant The Education Safety Association of Ontario."— Presentation transcript:

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

2 2 Agenda What is Due Diligence Legislation and Application Due Diligence as a Defence Internal Responsibility System (IRS) Ensuring Due Diligence

3 The Education Safety Association of Ontario3 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.

4 The Education Safety Association of Ontario4 Laws & Regulations Criminal - Intent Absolute Liability (Highway Traffic Act) Strict Liability (Occupational Health & Safety Act)

5 The Education Safety Association of Ontario5 Laws Occupational Health & Safety Act Occupiers Liability Act Tort for civil negligence Education Act (in schools) Criminal negligence Other Acts, Regulations and Codes

6 The Education Safety Association of Ontario6 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

7 The Education Safety Association of Ontario7 OHSA contd 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.

8 The Education Safety Association of Ontario8 Occupiers 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…

9 The Education Safety Association of Ontario9 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.

10 The Education Safety Association of Ontario10 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.

11 The Education Safety Association of Ontario11 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

12 The Education Safety Association of Ontario12 Duty of Care This is the obligation, created by law, to take care not to harm others by act or omission.

13 The Education Safety Association of Ontario13 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 boards care, the standard of care owed to the child is that of the reasonably prudent parent. - Education Act

14 The Education Safety Association of Ontario14 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.

15 The Education Safety Association of Ontario15 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

16 The Education Safety Association of Ontario16 New Legislation 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!

17 The Education Safety Association of Ontario17 Bill C-45 Police will take over investigation Review prior to formal charges If convicted jail and or fine likely Criminal record applicable

18 The Education Safety Association of Ontario18 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

19 The Education Safety Association of Ontario19 MOL Initiative Enforcement of regulations More inspectors Target workplaces Multi-visit specific employers Orders, Tickets and Charges

20 The Education Safety Association of Ontario20 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.

21 The Education Safety Association of Ontario21 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?

22 The Education Safety Association of Ontario22 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.

23 The Education Safety Association of Ontario23 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

24 The Education Safety Association of Ontario24 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!

25 The Education Safety Association of Ontario25 Elements 1.Safety Policy & Program 2.Communicated Standards/Procedures 3.Supervision 4.Training 5.Identify Significant Hazards & Address Them 6.Encourage Reporting & Internal Responsibility 7.Annual Audits and Reviews

26 The Education Safety Association of Ontario26 Proof of Due Diligence ongoing effort Due diligence can only stem from a real, concentrated and ongoing effort on your part. visible The energy spent by you must be enough to be visible to all the staff and clients you are responsible for. DOCUMENT Identifying a hazard is not enough - you must follow-up and DOCUMENT

27 The Education Safety Association of Ontario27 Documentation Record all steps Record all steps you take for the protection of persons in your control. Have written instructions, procedures and practices. written documentation Create a health and safety file, diary, or other method of written documentation. Keep forever All health & safety-related issues must be written, and copies kept for your defense. (Keep forever)

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.

29 The Education Safety Association of Ontario29 Definitions Owner Employer Supervisor person who has charge of a workplace authority over a worker means a person who has charge of a workplace or authority over a worker person who employs 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 person who acts for or on behalf of an owner 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

30 The Education Safety Association of Ontario30 Definitions Worker Workplace The Act Regulation Prescribed by a regulation means prescribed by a regulation made under this Act any means any land, premises, location or thing at, upon, in or near which a worker works monetary compensation means a person who performs work or supplies services for monetary compensation under this Act means the regulations made under this Act Act means the Occupational Health and Safety Act

31 The Education Safety Association of Ontario31 Definitions Competent Person means a person who, (a) is qualified because of knowledge, training and experience to organize the work and its performance, (c) has knowledge of any potential or actual danger to health or safety in the workplace (b) is familiar with this Act and the regulations that apply to the work, and You MUST meet all 3 conditions to be competent

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

33 General Duties of Employers (contd) 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

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 workers protection Taking every precaution reasonable for the protection of workers

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

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.

37 The Education Safety Association of Ontario37 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.

38 The Education Safety Association of Ontario38 Words of Wisdom Risk of injury and risk of conviction/liability go togetherRisk 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

39 The Education Safety Association of Ontario39 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.

40 The Education Safety Association of Ontario40 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.

41 The Education Safety Association of Ontario41 Consider the 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 Look at the different factors

42 The Education Safety Association of Ontario42 Example Case 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. Situation 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.

43 The Education Safety Association of Ontario43 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.

44 The Education Safety Association of Ontario44 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 Example Case Continued

45 The Education Safety Association of Ontario45 Proactive & Reactive Actions taken prior to the hazard to hopefully prevent an accident Actions taken upon discovery of a reported or observed hazard.

46 The Education Safety Association of Ontario46 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?

47 The Education Safety Association of Ontario47 Practical Steps Awareness Objectivity Proactively Document Follow-up

48 The Education Safety Association of Ontario48 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!

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

50 The Education Safety Association of Ontario50 Michael Atkinson Education Safety Association of Ontario Thank You!


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