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 In R. v. Grant Forest Products Inc. and
Wabi Development Corporation, the Ontario Court of Justice recently made a
pronouncement on the due diligence defence known as “reasonable belief in
mistaken facts.”
It is an appellate decision, as the trial
was held before a justice of peace and then appealed to a judge, Justice Keast.
This recent decision helps to clarify and explain the defence of reasonable
belief in mistaken facts, a legal concept that was created by the Supreme Court
of Canada in R. v. Sault Ste. Marie. Although R. v. Grant Forest Products Inc.
and Wabi Development Corporation deals with charges under Ontario’s
Occupational Health and Safety Act, the law on due diligence applies to all
strict liability (also known as regulatory) offences in Canada.
Consequently, the defence of reasonable
belief in mistaken facts is important for all professionals working in an
industry marked by regulatory compliance.
Should you ever be charged with a
regulatory contravention, the reasonable belief in mistaken facts defence can
be used as a legal shield, in certain situations. Better yet, you may avoid
getting charged if you can demonstrate that you have a viable defence, as
prosecutors do not lay charges in circumstances where there is no reasonable
prospect of conviction. But what are the situations in which the defence will
succeed? This article attempts to
provide guidance on that question.
First, I will briefly outline the two types
of due diligence defences. Then, by looking at this recent appellate case, the
law regarding the defence of reasonable belief in mistaken facts will be
explained. I will also provide
examples of when it can be successful and when it is unlikely to save the day.
Finally, the implications for protecting yourself from regulatory prosecution
will be discussed.
Two types of due diligence defence
In R. v. Sault Ste. Marie, the Supreme
Court of Canada, created a category of liability that was neither civil nor
criminal. This new category was designated as “strict liability” or
“regulatory” offences.
The Supreme Court of Canada also fashioned
a defence to accompany this novel type of offence. Labelled “due diligence”, it
was divided into two different forms, each one being a sufficient protection
against a strict liability offence: the “taking all reasonable precautions”
defence and the “reasonable belief in mistaken facts” defence.
Under the first, the accused must take all
reasonable precautions in the circumstances to avoid the illegal behaviour. As
a result of doing everything that was expected, the wrongdoing is excused.
Under the second, the accused makes an
honest error in believing certain facts to be true, and as a result, the
wrongdoing is considered an innocent mistake. However, the mistaken belief must
be a reasonable one, in the particular circumstances.
This article focuses on the first variety
of due diligence defence.
R. v. Grant Forest Products Inc. and Wabi
Development Corporation: Judicial history
This appellate decision was rendered by
Justice Keast of the Ontario Court of Justice in Sudbury, on December 22, 2007,
with written reasons released on Feb. 22, 2008. Wabi Development Corporation
was convicted at trial and appealed, one of the issues being due diligence.
Facts of the case
The company was charged, as an employer,
with violating section 85 of the Industrial Establishments Regulation 851. It
was alleged that a worker, exposed to a fall hazard of more than three metres,
was not wearing fall-arrest protection. At the trial, the justice of peace
found that the injured worker fell twenty-two feet down a chute, and thus was
exposed to a fall of more than three metres. The company conceded that the
injured worker was not wearing fall-arrest protection, but explained that it
had implemented other measures and procedures, instead.
At trial, the company attempted to use the
reasonable belief in mistaken facts defence. It was argued that Wabi
Development reasonably thought there was no danger to the worker due to the
steps that had been taken, namely a three-point contact procedure coupled with
directions and instructions to avoid the chute area. The company’s supervisor
testified that he believed these measures and procedures negated the danger
posed by the fall hazard, and that his belief was reasonable.
The company was convicted at trial.
Disposition of the case
In dismissing the appeal, Justice Keast
made two important points. First, he stated that the supervisor’s “subjective
belief is insufficient to establish due diligence.” Put another way, a personal
belief is not enough to establish due diligence, since a personal belief might
not be a “reasonable” one. In the
legal realm, a “reasonable” belief is something that an objective, unbiased, third
party would believe. This assessment is made by the court and is based on the
specific circumstances of the case.
The second important point noted by Justice
Keast is that the mistake must be one of fact, not one of law. As stated in his
ruling, “...a reasonable belief in a mistaken set of facts cannot prevail where
an accused simply proves that he was mistaken in believing that there was no
danger of injury to a worker as a result of the procedure implemented. [The
supervisor] was fully aware of the underlying facts, which constituted a
violation of the act and regulation.”
It is a mistake of law, rather than a
mistake of fact, to incorrectly believe that the danger of a situation was
remedied. The company was essentially claiming it did not think it was breaking
the law, or that it did not think the law applied, neither of which constitutes
a defence.
In this case, it was a fact that a chute
existed through which a worker could have fallen. Thus, it was a fact that a
worker was exposed to a fall hazard. It is irrelevant whether the accused
believed that the danger posed was unlikely to materialize in light of the safety
precautions taken, even if that belief is honestly held. The company was not
claiming it did not know there was exposure to a fall hazard; rather, it was
saying that it did not think there was a dangerous situation, given the
precautions taken. As long as the accused knows the relevant underlying facts,
the analysis of those facts (including deciding whether the situation is dangerous)
is immaterial to a defence of reasonable mistaken facts.
An example
A due diligence belief must be reasonable,
but what exactly does the accused have to believe? Recall that in R. v. Grant Forest Products Inc. and Wabi
Development Corporation it was statutorily required that a worker, exposed to a
fall hazard of more than three feet, wear fall-arrest protection. Now, if we
break this up, it seems like there are several elements to this offence:
A worker who is exposed to a fall hazard of
more than three metres, must wear fall-arrest protection.
If the judge had found that the employer
had a reasonable mistaken belief in fact about any of these elements, the
defence could have succeeded. For example, the defence could succeed if the
employer reasonably thought that there was no fall hazard. Imagine, in a
hypothetical case, that the fall hazard was a water-well hidden in the ground,
which the employer did not know about. And, more importantly, let us say that
it would not be reasonably expected that the employer should know about the
water-well, in the circumstances. This would constitute a reasonable mistaken
belief that would render the violation (workers not having fall-arrest
protection) an innocent mistake.
The hurdle would be convincing the judge
that it was reasonable that the employer was unaware of the fall-hazard. In
making this essential decision, the court would likely assess the efforts made
by the employer to apprise itself of the workplace landscape. If the water-well
was not readily visible, not marked on any map, blueprint, or other relevant
document, and the employer had made all other reasonable inquires in the
circumstances, then the mistaken belief that there was no fall hazard would
likely be deemed reasonable by the court.
Implications for professionals in regulated industry
If you are charged with an offence, the
defence of a mistaken, but reasonable, belief in facts may be available.
Ultimately, its success or failure will hinge on the judge’s assessment of your
knowledge of the underlying facts. You cannot claim ignorance of a big hole on
the ground, for example, when it was in plain sight or other people knew about
it. Why? Your mistaken belief will likely not be considered reasonable under
the circumstances.
In addition, you cannot claim that you
thought the big hole was not dangerous because of measures you took, other than
those required by the regulations. Why? That is a mistake of law. This begs the
question: How can you protect yourself?
To succeed with this defence you must have
a reasonable mistaken belief in facts, which if true, would render innocent the
violation in question. The only aspects of this equation that you control are
the “reasonable” and “belief” parts. Practically, this means you must make
reasonable efforts to learn about, and stay apprised of, your workplace
surroundings. Also, the court must find that the belief was “honestly” held.
Likely, it will be necessary for you to testify at trial and satisfy the
justice of the peace, or judge, that you honestly and truly believed the
mistaken facts to be true. It will not suffice for a witness to attend court
and dispense a fabricated story about what they thought.
Thus, you may afford yourself the
opportunity to use the defence of reasonable belief in mistaken facts as a
shield against regulatory prosecution if you put the time, resources, and
efforts into truly knowing your workplace landscape.
Neil Gobardhan is a Crown prosecutor with
the Ontario Ministry of Labour. He holds a Master of Law from the University of
Cambridge, England, and a Bachelor of Laws from Osgoode Hall Law School in
Toronto. Please note that the views expressed in the above article do not
constitute legal advice, nor do they represent or reflect, in any way, the
views of the Ontario Ministry of Labour.
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