In R. v. Grant Forest Products Inc. andWabi Development Corporation, the Ontario Court of Justice recently made apronouncement on the due diligence defence known as “reasonable belief inmistaken facts.”
It is an appellate decision, as the trialwas 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 reasonablebelief in mistaken facts, a legal concept that was created by the Supreme Courtof Canada in R. v. Sault Ste. Marie. Although R. v. Grant Forest Products Inc.and Wabi Development Corporation deals with charges under Ontario’sOccupational Health and Safety Act, the law on due diligence applies to allstrict liability (also known as regulatory) offences in Canada.
Consequently, the defence of reasonablebelief in mistaken facts is important for all professionals working in anindustry marked by regulatory compliance.
Should you ever be charged with aregulatory contravention, the reasonable belief in mistaken facts defence canbe used as a legal shield, in certain situations. Better yet, you may avoidgetting charged if you can demonstrate that you have a viable defence, asprosecutors do not lay charges in circumstances where there is no reasonableprospect of conviction. But what are the situations in which the defence willsucceed? This article attempts toprovide guidance on that question.
First, I will briefly outline the two typesof due diligence defences. Then, by looking at this recent appellate case, thelaw regarding the defence of reasonable belief in mistaken facts will beexplained. I will also provideexamples of when it can be successful and when it is unlikely to save the day.Finally, the implications for protecting yourself from regulatory prosecutionwill be discussed.
Two types of due diligence defence
In R. v. Sault Ste. Marie, the SupremeCourt of Canada, created a category of liability that was neither civil norcriminal. This new category was designated as “strict liability” or“regulatory” offences.
The Supreme Court of Canada also fashioneda defence to accompany this novel type of offence. Labelled “due diligence”, itwas divided into two different forms, each one being a sufficient protectionagainst 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 allreasonable precautions in the circumstances to avoid the illegal behaviour. Asa result of doing everything that was expected, the wrongdoing is excused.
Under the second, the accused makes anhonest error in believing certain facts to be true, and as a result, thewrongdoing is considered an innocent mistake. However, the mistaken belief mustbe a reasonable one, in the particular circumstances.
This article focuses on the first varietyof due diligence defence.
R. v. Grant Forest Products Inc. and WabiDevelopment Corporation: Judicial history
This appellate decision was rendered byJustice Keast of the Ontario Court of Justice in Sudbury, on December 22, 2007,with written reasons released on Feb. 22, 2008. Wabi Development Corporationwas 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. Itwas 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 peacefound that the injured worker fell twenty-two feet down a chute, and thus wasexposed to a fall of more than three metres. The company conceded that theinjured worker was not wearing fall-arrest protection, but explained that ithad implemented other measures and procedures, instead.
At trial, the company attempted to use thereasonable belief in mistaken facts defence. It was argued that WabiDevelopment reasonably thought there was no danger to the worker due to thesteps that had been taken, namely a three-point contact procedure coupled withdirections and instructions to avoid the chute area. The company’s supervisortestified that he believed these measures and procedures negated the dangerposed 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 Keastmade two important points. First, he stated that the supervisor’s “subjectivebelief is insufficient to establish due diligence.” Put another way, a personalbelief is not enough to establish due diligence, since a personal belief mightnot be a “reasonable” one. In thelegal realm, a “reasonable” belief is something that an objective, unbiased, thirdparty would believe. This assessment is made by the court and is based on thespecific circumstances of the case.
The second important point noted by JusticeKeast is that the mistake must be one of fact, not one of law. As stated in hisruling, “...a reasonable belief in a mistaken set of facts cannot prevail wherean accused simply proves that he was mistaken in believing that there was nodanger of injury to a worker as a result of the procedure implemented. [Thesupervisor] was fully aware of the underlying facts, which constituted aviolation of the act and regulation.”
It is a mistake of law, rather than amistake of fact, to incorrectly believe that the danger of a situation wasremedied. The company was essentially claiming it did not think it was breakingthe law, or that it did not think the law applied, neither of which constitutesa defence.
In this case, it was a fact that a chuteexisted through which a worker could have fallen. Thus, it was a fact that aworker was exposed to a fall hazard. It is irrelevant whether the accusedbelieved that the danger posed was unlikely to materialize in light of the safetyprecautions taken, even if that belief is honestly held. The company was notclaiming it did not know there was exposure to a fall hazard; rather, it wassaying that it did not think there was a dangerous situation, given theprecautions 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.
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 WabiDevelopment Corporation it was statutorily required that a worker, exposed to afall hazard of more than three feet, wear fall-arrest protection. Now, if webreak this up, it seems like there are several elements to this offence:
A worker who is exposed to a fall hazard ofmore than three metres, must wear fall-arrest protection.
If the judge had found that the employerhad a reasonable mistaken belief in fact about any of these elements, thedefence could have succeeded. For example, the defence could succeed if theemployer reasonably thought that there was no fall hazard. Imagine, in ahypothetical 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 thatit would not be reasonably expected that the employer should know about thewater-well, in the circumstances. This would constitute a reasonable mistakenbelief that would render the violation (workers not having fall-arrestprotection) an innocent mistake.
The hurdle would be convincing the judgethat it was reasonable that the employer was unaware of the fall-hazard. Inmaking this essential decision, the court would likely assess the efforts madeby the employer to apprise itself of the workplace landscape. If the water-wellwas not readily visible, not marked on any map, blueprint, or other relevantdocument, and the employer had made all other reasonable inquires in thecircumstances, then the mistaken belief that there was no fall hazard wouldlikely be deemed reasonable by the court.
Implications for professionals in regulated industry
If you are charged with an offence, thedefence of a mistaken, but reasonable, belief in facts may be available.Ultimately, its success or failure will hinge on the judge’s assessment of yourknowledge of the underlying facts. You cannot claim ignorance of a big hole onthe ground, for example, when it was in plain sight or other people knew aboutit. Why? Your mistaken belief will likely not be considered reasonable underthe circumstances.
In addition, you cannot claim that youthought the big hole was not dangerous because of measures you took, other thanthose required by the regulations. Why? That is a mistake of law. This begs thequestion: How can you protect yourself?
To succeed with this defence you must havea reasonable mistaken belief in facts, which if true, would render innocent theviolation in question. The only aspects of this equation that you control arethe “reasonable” and “belief” parts. Practically, this means you must makereasonable efforts to learn about, and stay apprised of, your workplacesurroundings. Also, the court must find that the belief was “honestly” held.Likely, it will be necessary for you to testify at trial and satisfy thejustice of the peace, or judge, that you honestly and truly believed themistaken facts to be true. It will not suffice for a witness to attend courtand dispense a fabricated story about what they thought.
Thus, you may afford yourself theopportunity to use the defence of reasonable belief in mistaken facts as ashield against regulatory prosecution if you put the time, resources, andefforts into truly knowing your workplace landscape.
Neil Gobardhan is a Crown prosecutor withthe Ontario Ministry of Labour. He holds a Master of Law from the University ofCambridge, England, and a Bachelor of Laws from Osgoode Hall Law School inToronto. Please note that the views expressed in the above article do notconstitute legal advice, nor do they represent or reflect, in any way, theviews of the Ontario Ministry of Labour.
Mari-Len De Guzman is the former editor of Canadian Occupational Safety magazine and www.cos-mag.com.