Proving “Due Diligence” in Cases Involving Fatalities

In August 2017 we reported on an emerging story involving an Ontario construction employer by the name of Cobra Float Services (“Cobra”). You may recall that Cobra was charged by the Ministry of Labour (“MOL”) for violating numerous provisions of the Occupational Health and Safety Act (the “OHSA”). In 2013, a worker was fatally injured when a “curb machine” flipped over while it was being off-loaded from a trailer. In our previous report, we discussed Cobra’s attempt to file a “motion for a directed verdict of acquittal”, a strategy that is commonly used in proceedings under the Criminal Code.

When Cobra’s interim motion was dismissed by the Court, we speculated that the company’s strategy at trial would be to claim that it had exercised “due diligence” to ensure the safety of the fatally injured worker.

The Defence of Due Diligence under the OHSA

The defence of “due diligence” has been interpreted to place a very heavy burden on employers to take “every reasonable precaution to ensure the protection of workers”. Due diligence requires that employers take active steps to protect the safety of their workers by creating procedures and systems to implement the requirements of the OHSA and, further, by ensuring the effective operation of those procedures and systems through their supervisors and managers.

While the foregoing requirements appear to be reasonable, in practice, it has historically been very difficult or an employer to prove due diligence, particularly in circumstances where a worker has been fatally injured.

The Crown’s Allegations

At trial before the Ontario Court of Justice, the Crown relied on the foregoing principles, and on leading decisions issued by the Ontario Court of Appeal, which recognized an employer’s obligation to protect the safety of workers even in circumstances where the workers had been “negligent, careless, or reckless” in the discharge of their duties. Applying the foregoing principles to the facts before the Court, the Crown alleged that the evidence did not prove that Cobra had exercised “due diligence” that would meet the legal standard required by the OHSA. The Crown submitted to the Court:

  • Cobra had failed to take “active” steps to ensure that the curb machine that crushed the injured worker was moved in a safe manner;
  • Cobra had failed to provide a “sloped surface” that would have prevented the curb machine from tipping over;
  • Cobra had failed to ensure that the fatally injured worker was aware of the maximum safe “moving” elevation of the machine (it was to have been moved in only the “lowest” elevation setting), or how the curb machine could be unloaded while maintaining the machine at a safe elevation. Instead, Cobra’s drivers were “left to use their own discretion and judgment”.
  • The evidence disclosed that Cobra’s drivers were unaware of relevant provisions from the curb machine’s operating manual regarding safe elevation for movement;
  • Cobra “seriously failed in its duties as an employer” by relying solely on workers’ previous experience and “vetting during the hiring process”. There was no meaningful orientation or training. There was a written procedure in place on “loading and unloading” that was entirely silent on the hazard that resulted in the worker’s death;
  • Cobra had failed to provide either the necessary equipment (a ramp, or equivalent), nor adequate information and training (regarding the machine’s operation with respect to elevation and controls); and
  • Cobra took no steps to ensure, by supervision or otherwise, that safety procedures for unloading curb machines had been implemented, were effective, and were being followed by its workers at all times.

In the Crown’s submission to the Court, based on the foregoing legal principles and evidence, Cobra should have been found guilty.

Cobra’s Defence of Due Diligence

In presenting its due diligence defence, Cobra highlighted the following key points:

  • The curb machine was suitably maintained, recently inspected and suitably locked out;
  • The MOL Inspector’s evidence appeared to suggest that the ground upon which the machine was unloaded was “fine”. Moreover, the MOL Inspector had “no prior experience” inspecting the type of trailer or curb machine involved in the tragic accident;
  • The injured worker had moved the curb machine a total of twenty-seven (27) times prior to the accident without incident or cause for concern;
  • The injured worker had failed to use a block of wood which had been provided by Cobra, and was commonly used by the worker on prior occasions, to assist in lining up the wheels of the curb machine when unloading from the trailer;
  • The injured worker had set the curb machine to “manual” mode, as opposed to “automatic”, which deviated from the established practice for all of Cobra’s drivers when unloading the curb machine from a trailer;
  • Video surveillance evidence appeared to suggest that the curb machine was at an appropriate height for unloading when the trailer pulled onto the job site;
  • There was no direct eyewitness evidence regarding what actually happened (the incident was not captured by the aforementioned video surveillance due to the placement of the cameras at the job site);
  • Cobra had up to date health and safety policies, it was committed to training, and all employees under its supervision had been trained on appropriate health and safety procedures;

Cobra stressed that the OHSA and its Regulations did not contemplate that an employer would have to “supervise every action of a skilled and experienced worker”. Cobra submitted that the law required that every “reasonable” precaution be taken in the circumstances to avoid “reasonably foreseeable causes” of health and safety concerns. In Cobra’s submission, the circumstances leading to the injured worker’s death were not “reasonably foreseeable”, and the law does not apply a standard of perfection. In Cobra’s view, all applicable procedures regarding safe transportation and unloading had been well established and should have been followed.

The Court’s Decision

Cobra’s trial concluded with a final decision issued by Justice of the Peace Gerry Manno on November 15, 2017. In the result, the Court ruled that Cobra had proven the defence of “due diligence” under the OHSA, on a balance of probabilities. The Court discussed the evidence regarding the issues of “reasonable foreseeability” and due diligence as follows:

  • There was no formal training course available in the marketplace to train workers on the task of loading and unloading a curb machine;
  • Cobra was found to have encouraged workers to discuss health and safety concerns, by scheduling regular team meetings and holding frequent discussions regarding health and safety;
  • Cobra had complied with all relevant rules applicable to its industry, including health and safety reporting, regulatory and policy compliance and communication of prior issues to the MOL;
  • There was no evidence that the accident was part of an “industry-wide” health and safety issue;
  • While there had been no specific training provided to Cobra’s drivers, the Court recognized that the worker, and other drivers in Cobra’s employ, had demonstrated their experience and ability to perform the task of unloading the curb machine in the past. While a “more formalized” health and safety training protocol could have been established, Cobra’s approach to health and safety was deemed to have been shared by many “small to medium-sized companies”. The Court identified that smaller companies, in general, have fewer resources to devote to formalized training than larger outfits; however, it would not necessarily follow that workers at smaller companies would be exposed to “foreseeable” risks and dangers because of the company’s reliance on the workers’ prior experience. The Court noted that it had to be careful not to “measure the practices” of smaller companies against those of larger companies with far more resources, as it might lead to “potential prejudice” and would be “antithetical to the very noble purposes that the Court (and the MOL) would wish to uphold”.
  • The Court recognized that there were also inherent limits to the knowledge of the deceased’s worker’s supervisor (and owner of the company), Mr. Martellacci. Mr. Martellacci did not have a full working knowledge of the intricacies associated with the practice of unloading a curb machine from a trailer. However, the Court noted, apart from the fact that no “specific” training courses were available and accepted in the marketplace, and that Mr. Martellaci had participated in the same health and safety training provided to Cobra’s drivers, the deceased worker had “demonstrated his experience and ability” to Mr. Martellacci from the outset. The Court confirmed that Mr. Martellacci was entitled to rely on the experience of the deceased worker. In that regard, the Court clarified: “the more experience a worker had, the less foreseeable an accident would be by that employer” (at para 256).
  • Finally, the Court found that the fatally injured worker “knew or ought to have known” that he was deviating “from the standard practice that others and he himself had followed on previous occasions”. In that regard, the worker had failed to utilize a block of wood that had been provided to line up the wheels of the curb machine during the unloading process, and additionally, had set the machine to “manual” mode as opposed to “automatic”. The Court ruled that Cobra could not have predicted, or “foreseen”, that the worker would have deviated from the procedures that he had followed, with zero incidents, on at least twenty-three (23) prior occasions while in the employ of Cobra.

In the result, Cobra was acquitted in respect of all violations of the OHSA. To date, the Crown has not appealed Justice of the Peace Manno’s decision.

Key Takeaways for Employers

The Court’s decision highlights several key points regarding the interpretation and application of the OHSA as it relates to the “due diligence” defence. Most importantly it reminds employers that the defence of due diligence can be proven, even in cases involving fatalities.

Significantly, while the MOL has committed substantial resources to its recent “Health and Safety blitzes”, and the Crown will continue to adopt a broad and purposive approach to the enforcement of charges under the OHSA, employers should be reassured by the fact that Courts recognize that there is an upper limit to what an employer can reasonably be expected to do, or “foresee”, in order to safeguard the health and safety of a worker.

At the end of the day, the law recognizes that a supervisor or manager cannot be everywhere, all the time. The law also recognizes that there are limits to an employer’s, or supervisor’s, knowledge and ability, especially in smaller workplaces with fewer, more specialized employees.

Further, an employer or supervisor, particularly in respect of a smaller company with limited resources, cannot be expected to be apprised of every specific detail, best practice, industry standard, rule or guideline that may apply to every specific job function performed at a job site. The law recognizes that certain industry practices are developed over time and may only reveal themselves to experienced employees after years of on-the-job training.

The law requires an employer to take steps to prevent “reasonably foreseeable” accidents; the law does not hold employers to a standard of perfection, particularly in circumstances where they are relying upon the specialized training and experience of their subordinate staff members. In our view, the foregoing premises would be key elements of a defence of due diligence for employers in future cases involving similar issues.

It is worth noting that for a small company, Cobra’s approach to health and safety appears to have been faultless. In that regard, we refer to our observations on due diligence from our previous blog post:

At a minimum, proving due diligence will require compliance with applicable OHSA regulations which apply to the employer’s workplace operations. Other factors which may assist an employer to prove due diligence include:

  • Diligent and proactive management (i.e. the presence of an involved “Directing Mind” of the Organization/Corporation);
  • The presence of a comprehensive, OHSA compliant health and safety policies;
  • The presence of competent, well trained supervisory staff;
  • The use of a certified third-party health and safety specialist/consultant;
  • The presence of certified JHSC and/or Health and Safety Representative members, as required by the OHSA;
  • Proper, documented site inspections;
  • Up to date WHMIS documentation and training;
  • Compliance with all OHSA Regulations applicable to the employer’s specific industry sector; and
  • Ensuring up to date training on all equipment.

Cobra complied with substantially all of the foregoing points. It stands to reason that if there had been any other issues with respect to Cobra’s compliance with the OHSA and its Regulations, or any deficiencies with respect to Cobra’s approach to health and safety generally, the Court’s decision might have been very different.

For a full copy of the Ontario Court of Justice’s decision in Ontario (Ministry of Labour) v Cobra Float Service Inc, 2017 ONCJ 763 (CanLII), please click here.

Co-authored by Tushar Anandasagar and Lucas Hendsbee.

Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.

Lucas Hendsbee is a Research Assistant at LeClair and Associates P.C. He provides research and analysis regarding all areas of the law, with a focus on regulatory compliance, policy analysis and emerging legal issues. For further information or discussion, please contact Lucas by email at Lucas@leclairandassociates.ca.


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