It is any workplace’s worst nightmare: an injury to a worker while on the job. Yet for all the horror it brings, it is also a disturbingly common event. Employers are required by law to take all steps necessary to prevent their workers from being injured on the job. But what happens if a worker does get hurt?

Can an employer properly use a procedural instruction in lieu of a physical guard on machinery or equipment? Can a deliberate decision by workers not to use such a procedural instruction in itself afford a due diligence defence to a guarding charge? 

 

In a decision issued by Ontario’s highest court on Nov. 1 2007, these questions received the resounding answer “No!” and all employers received a stern reminder that guarding-related requirements in occupational health and safety legislation must be strictly complied with.

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.” 
 
Consequently, the defence of reasonable belief in mistaken facts is important for all professionals working in an industry marked by regulatory compliance.

The Court of Appeal for Ontario recently rendered a decision in a prosecution under the Occupational Health and Safety Act (OHSA) that has broad implications for employers. 

The decision in R. v. Dofasco is very important for OHS professionals and all managers responsible for the health and safety of workers to understand and apply in setting and enforcing safe work procedures. An initial reading of the Court of Appeal’s decision may be discouraging. How, ask many employers, can we ever prove the defence of due diligence? That and other issues and implications will be reviewed as we ask, rhetorically, is R. v. Dofasco the death of due diligence?